noting it has “regularly rejected the contention 7 that the court must specify which factors of section 190.3 apply in mitigation and which in 8 aggravation”
How later courts described this case
- noting it has “regularly rejected the contention 7 that the court must specify which factors of section 190.3 apply in mitigation and which in 8 aggravation”
- irreconcilable conflict found where distrust resulted in complete 3 breakdown in communication between counsel and client
- California’s sentencing scheme adequately narrows the class of 12 persons eligible for death
- whether some 28 156 1 action violated a state’s law forms “no part” whatsoever [i.e., not a little, not at all] of an 2 inquiry whether that action violated the Constitution
Written by the judges who cited it.
The opinion
1
2
3
4
5
6
7
8 UNITED STATES DISTRICT COURT
9
EASTERN DISTRICT OF CALIFORNIA
10
11 COLIN RAKER DICKEY, Case No. 1:06-cv-00357-AWI-SAB
12 Petitioner, DEATH PENALTY CASE
13 v. MEMORANDUM AND ORDER:
14 RON DAVIS, Warden of San Quentin State (1) DENYING PENALTY PHASE CLAIMS,
Prison, (2) DENYING PETITION FOR WRIT OF
15 HABEAS CORPUS, (3) ISSUING A
Respondent.1 CERTIFICATE OF APPEALABILITY FOR
16 CLAIMS I, II(E), II(I), V, and XIII, and (4)
DENYING AS MOOT PETITIONER’S
17 MOTION FOR STAY, ENTRY OF PARTIAL
JUDGMENT, and for CERTIFICATES OF
18 APPEALABILITY
19 (Doc. Nos. 51, 51-1, 145)
20 CLERK TO VACATE ANY AND ALL
SCHEDULED DATES AND SUBSTITUTE
21 RON DAVIS AS RESPONDENT WARDEN
AND ENTER JUDGMENT
22
23
24
25 Petitioner Colin Raker Dickey is a state prisoner, sentenced to death, proceeding with a
26 petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. He is represented in this
27 1
Pursuant to Fed. R. Civ. P. 25(d), Ron Davis, warden of San Quentin State Prison, is substituted as Respondent
in place of his predecessor wardens.
28
1
1 action by appointed counsel David Senior, Ann Tria and Matthew Weston.
2 Respondent Ron Davis is named as Warden of San Quentin State Prison. He is
3 represented in this action by Justain Riley of the Office of the California Attorney General.
4 Before the Court for decision are: (i) the petition (Doc. Nos. 51, 51-1); (ii) record based
5 penalty phase claims II(I), II(U), III(A), III(B), III(C), III(D), III(E), III(F), III(G), III(H), V,
6 VI, VII, IX, X, XI, XII(D), XII(E), XII(F), XII(G), XII(H), XX, XXV(A), XXV(B), XXV(C),
7 XXV(D), XXV(E), XXV(F), XXV(G), XXV(H), XXV(I), XXV(J), XXV(K), XXV(L),
8 XXVII, and XXIX (id.); and (iii) Petitioner’s motion filed April 29, 2019 seeking stay of
9 penalty phase claims, entry of partial judgment on the previously denied guilt phase claims,
10 and issuance of Certificate of Appealability on claims I, II, XII-XIX, and XXI (Doc. No. 145).
11 Having previously denied guilt phase claims I, II (portions), IV, VIII, XII (portions),
12 XIII, XIV, XV, XVI, XVII, XVIII, XIX, XXI, XXII, XXIII, XXIV, XXVI, and XXVIII (see
13 Doc. No. 135), and upon careful review of the parties’ filings and the relevant case law and for
14 the reasons set out below, the undersigned finds that: (i) the penalty phase claims shall be
15 denied on the merits, (ii) the petition for writ of habeas corpus shall be denied, (iii) Petitioner’s
16 pending motion for stay of penalty phase claims and entry of partial judgment on guilt claims
17 shall be denied as moot, and (iv) Certificate of Appealability shall issue only for claims I, II(E),
18 II(I), V, and XIII.
19 I. BACKGROUND
20 Petitioner was charged in Fresno County with: counts 1 and 2 for murder (Penal Code §
21 187); counts 3 and 4 for robbery (Penal Code § 211); count 5 for burglary (Penal Code §§
22 459/460); special circumstances of felony-murder robbery, felony-murder burglary, and
23 multiple murder (Penal Code §§ 190.2(a)(3), (17), 211, 459/460); and aider and abettor liability
24 (Penal Code § 190.2(b)).2 (RT 122-26; CT 297-301, 303-307.) Petitioner pleaded not guilty to
25 all the charges. (RT 126; CT 232, 302.)
26 Petitioner’s jury trial began on January 7, 1991 in Fresno County Case No. 416903-3.
27
28 2
Reference to state law is to California law unless otherwise noted.
2
1 (CT 295-296.) On March 15, 1991, the jury found Petitioner guilty of the murders of Marie
2 Caton and Louis Freiri with special circumstances of felony-murder robbery and felony-murder
3 burglary and multiple murder; and found Petitioner guilty of first-degree robbery of each
4 victim and first-degree burglary of their residence. (Case No. 416903-3; see also CT 380-385,
5 463-468, 610-614.)
6 On March 19, 1991, Petitioner admitted a prior felony conviction (CT 472) and waived
7 personal presence at the penalty phase. (CT 472-476.) On March 22, 1991, the jury returned a
8 penalty phase verdict of death. (CT 478-482, 504.)
9 On March 26, 1991, the trial court appointed Katherine Hart to represent Petitioner on
10 motions for new trial and to modify the verdict due to Petitioner’s dissatisfaction with lead trial
11 counsel Marvin Schultz (hereinafter “Schultz”) expressed following the guilt phase verdict.3
12 (CT 505; RT 5181-87.)
13 Ms. Hart raised issues of insufficiency of evidence, prosecutorial misconduct,
14 instructional error, Petitioner’s erroneous admission of his prior felony conviction, trial court
15 error and ineffective assistance of counsel at the guilt and penalty phases. (CT 525-589.) The
16 motion for new trial was denied on January 17, 1992. (CT 516-518.) The motion for
17 modification of the verdict was denied on February 21, 1992 and Petitioner was sentenced to
18 death. (CT 609-615; Feb. 21, 1992 Transcript, at 50.)4
19 On April 14, 2003, Petitioner filed his first state habeas petition, (hereinafter “SHCP”)
20 In re Dickey, S115079 (Lod. Doc. 7), which the California Supreme Court summarily denied
21 on November 30, 2005. (Lod. Doc. 10.)
22 The California Supreme Court affirmed Petitioner’s conviction on direct appeal on May
23 23, 2005. People v. Dickey, 35 Cal. 4th 884 (2005). That court denied Petitioner’s request for
24 rehearing on July 13, 2005. People v. Dickey, California Supreme Court Case No. S025519.
25 3
Schultz was sometimes assisted by Fresno County deputy public defender Ann Burtner. (See Pet. Ex. 23 at
SH002051.)
26 4
Unless otherwise indicated, throughout this order, “CT” refers to the clerk’s transcript on appeal; “SCT” refers to
the supplemental clerk’s transcript on appeal; “RT” refers to the reporter’s transcript on appeal; and “CRT” refers
27 to the corrected reporter’s transcript on appeal. Other transcripts are referenced by date. References to page
numbering are to internal page numbering in the original documents except that ECF system numbering is used
28 for electronically filed documents and Bates numbering is used for the CT and SCT.
3
1 On February 21, 2006, the United States Supreme Court denied Petitioner’s writ of
2 certiorari. Dickey v. California, 546 U.S. 1177 (2006).
3 On March 30, 2006, Petitioner began this federal habeas proceeding under 28 U.S.C. §
4 2254 by filing a combined request for appointment of counsel and temporary stay of execution.
5 (Doc. Nos. 1 & 2.)
6 On October 4, 2007, Petitioner filed his federal petition for writ of habeas corpus
7 (hereinafter “Petition”). (Doc. No. 51, 51-1.)
8 On May 21, 2008, this Court ordered federal proceedings held in abeyance pending
9 state exhaustion of certain claims. (Doc. No. 69.)
10 On July 21, 2008, Petitioner filed his second state habeas petition (hereinafter
11 “SSHCP”), In re Dickey, S165302. (Lod. Doc. 30.) On May 23, 2012, the California Supreme
12 Court summarily denied the second state petition on the merits as to all claim and on
13 procedural grounds as to certain claims, Order Denying Cal. Pet., In re Colin Raker Dickey,
14 No. S165302 (May 29, 2012). (Lod. Doc. 31.)
15 Respondent filed his answer in this proceeding (Doc. No. 103) and amended answer
16 correcting clerical error (Doc. No. 105), on August 29, 2013. Therein Respondent admitted the
17 jurisdictional allegations and asserted exhaustion and procedural defenses and denied all claims
18 1 through 29.5
19 On November 18, 2013, this Court ordered bifurcated briefing with the guilt phase
20 claims briefed separately from and prior to the penalty phase claims. (Doc. No. 111.)
21 On April 16, 2014, Petitioner filed his brief in support of guilt phase claims including
22 request for factual development. (Doc. No. 116.)
23 On September 10, 2014, Respondent filed a second amended answer as his brief in
24 response to Petitioner’s brief. (Doc. No. 125.)
25 On November 7, 2014, Petitioner filed his brief in reply to Respondent’s brief including
26 request that Respondent’s second amended answer be stricken and for further factual
27
28 5
The amended answer is the operative answer. (See Doc. No. 114 at 1:20-21.)
4
1 development. (Doc. No. 128.)
2 On January 13, 2017, the Court denied Petitioner’s requests to strike the second
3 amended answer and for factual development of certain guilt phase claims and denied on the
4 merits the noted guilt phase claims. (Doc. No. 135.)
5 On February 17, 2017, the Court scheduled briefing of the penalty phase claims. (Doc.
6 No. 139.)
7 On April 17, 2017, Petitioner filed his penalty phase merits brief. (Doc. No. 142.)
8 On June 19, 2017, Respondent filed his penalty phase merits brief in opposition. (Doc.
9 No. 143.)
10 On July 17, 2017, Petitioner filed his brief in reply to the opposition. (Doc. No. 144.)
11 On April 29, 2019, Petitioner filed his noted motion for stay of penalty phase claims,
12 entry of partial judgment on guilt phase claims, and partial Certificate of Appealability. (Doc.
13 No. 145.) Respondent filed his response to the motion on June 27, 2019. (Doc. No. 147.)
14 Petitioner replied to the response on June 28, 2019. (Doc. No. 148.)
15 On July 8, 2019, the Court vacated the July 15, 2019 hearing on the motion and took
16 the matter under submission. (Doc. No. 149.)
17 No date has been set for Petitioner’s execution.
18 II. STATEMENT OF FACTS
19 The following factual summary is taken from the California Supreme Court’s opinion
20 in People v. Dickey, 35 Cal. 4th 884 (2005), and is presumed correct. 28 U.S.C. § 2254(d)(2),
21 (e)(1). Petitioner does not present clear and convincing evidence to the contrary; thus, the
22 court adopts the factual recitations set forth by the state court. See Vasquez v. Kirkland, 572
23 F.3d 1029, 1031 n.1 (9th Cir. 2009) (“We rely on the state appellate court’s decision for our
24 summary of the facts of the crime.”).
I. Facts
25
26 A. Guilt Phase
27 1. The Prosecution Case
28
5
The murder victims were Fresno residents—Marie Caton, 76, and Louis Freiri,
1 67, a friend and boarder of Mrs. Caton's. Their bodies were discovered by one
of Mrs. Caton's daughters, Lavelle Garratt. Mrs. Garratt or her sister checked on
2 their mother every day, “[b]ecause she was lonely, because she was our mother,
because we loved her and we wanted to see her.”
3
Late in the afternoon of November 8, 1988, when Mrs. Garratt could not reach
4 her mother by telephone, she drove to her house. She found Mrs. Caton on the
floor of her bedroom, covered with a bloodstained blanket. Mrs. Caton had been
5 beaten so badly her eyes bulged out of their sockets like golf balls. Mrs. Caton
also had knife wounds on her chest and a jagged cut on her back. She lingered
6 for 11 days, but never regained consciousness. The cause of death was
respiratory failure associated with “shock lung syndrome,” the shock having
7 been caused by her injuries.
8 Mr. Freiri wore a brace on his right leg and required a cane. Mrs. Garratt found
him facedown, stretched across the archway between the dining room and the
9 living room. A chair, wall, and window blinds near his body were bloodstained.
Pieces of his cane were found in the living room and one of the bedrooms. Mr.
10 Freiri had been stabbed in the chest, armpit, and forearm; he also had a bone-
deep laceration on his forehead. He was stabbed with such force that two of his
11 ribs were broken. He died of blood loss.
12 Mrs. Garratt told the police she suspected her son, Richard Cullumber.
Cullumber was, Mrs. Garratt believed, a drug addict, and he asked his
13 grandmother Mrs. Caton for money—cash she would take out of a buffet
drawer—almost every day. Mrs. Caton “grew up during the Depression and she
14 was afraid of being hungry again, I guess, and so she hid money all over.”
Among other caches, Mrs. Caton kept at least $6,000 in cash in a metal box
15 placed inside a suitcase stored under her bed. She also kept a smaller sum in
another suitcase.
16
Cullumber, also known as “R.C.,” lived in an apartment in Fresno, along with
17 defendant, Gail Goldman, Richard Buchanan, and two other men. The night of
the murders Cullumber packed his bag and left the apartment. He returned
18 several days later but fled again when informed the police were looking for him.
On November 12, 1988, after a high-speed police chase, Cullumber, cornered,
19 killed himself.
20 The pistol Cullumber used to shoot himself was registered to Mr. Freiri. He had
earlier warned the driver of a car he commandeered, “I need the car; I've already
21 killed a woman.”
22 Two knives possibly linked to the murders were discovered in Mrs. Caton's
kitchen—a butcher knife and a steak knife. The steak knife (People's exhibit No.
23 18) was, in the opinion of defendant's housemates Gail Goldman and Richard
Buchanan, identical to a knife belonging in their apartment.
24
In addition to his knife wounds, Mr. Freiri had a four-inch-long ligature wound,
25 caused by a cord that was wrapped around his neck. It was a cotton cord of the
color, weave, and texture used in venetian blinds. The venetian blinds in Mrs.
26 Caton's house were intact, but a venetian blind kept in the hall closet of the
apartment defendant shared with Cullumber and the others was missing its cord.
27 On the night of the murders, Gene Buchanan saw defendant remove a venetian
blind from the closet of their apartment, walk into the bedroom with it, and then
28
6
replace it in the closet. Goldman testified it was Cullumber who had done that.
1 Defendant's thumbprint was found on a slat from the venetian blind found by
the police in the apartment closet. n.2.
2
----------------------------------------FOOTNOTE-----------------------
3
n.2 No usable prints were found at the scene of the crime, not even those of
4 Mrs. Caton or Mr. Freiri.
5 --------------------------------------END FOOTNOTE------------------
6 The case against defendant rested on the testimony of Gail Goldman and Gene
Buchanan. n.3.
7
----------------------------------------FOOTNOTE-----------------------
8
n.3 Defendant impeached Buchanan on the grounds, among others, that his
9 testimony against defendant was motivated by revenge and a desire to collect
the reward offered by Mrs. Caton’s relatives. Defendant was less successful in
10 attacking Goldman’s credibility. If not a hostile witness for the prosecution, she
was clearly reluctant to testify against defendant, both because she was fond of
11 him and because she feared the consequences of informing on anyone. A critical
question, then, is to what extent Goldman’s testimony corroborates Buchanan’s.
12 To facilitate consideration of that question, we have set out their testimony
separately.
13
--------------------------------------END FOOTNOTE------------------
14
a) The Testimony of Gail Goldman. n.4.
15
----------------------------------------FOOTNOTE-----------------------
16
n.4 Because she died before the trial began, Goldman’s preliminary hearing
17 testimony was read into the record. (See Evid. Code, § 240, subd. (a)(3).)
18
--------------------------------------END FOOTNOTE------------------
19
Goldman shared a one-bedroom apartment in Fresno with defendant,
20 Cullumber, Buchanan, and two other men. According to Detective Doug Stokes,
Goldman told him “about a venetian blind that had been in the hall closet that
21 was ... taken by the suspect, Dickey, ... into a bedroom and that the cord was
removed from that venetian blind and then the venetian blind was placed back
22 inside the hall closet.” However, when she testified, Goldman said it was
Cullumber who took the venetian blind out of the closet and went into the
23 bedroom with it. Later, she testified, the blind had been replaced in the closet,
but the cord was missing from a blind in the bedroom.
24
At approximately the same time that Cullumber was engaged with the venetian
25 blind, defendant walked into the kitchen and opened a drawer containing knives
and other silverware. n.5 According to Detective Stokes, Goldman told him
26 defendant removed a knife from the drawer and left the kitchen with it. Again
according to Detective Stokes, when he came to the apartment investigating the
27 murders, he showed Goldman a knife. She told him, “I have a knife exactly like
that knife, or they are twins.”
28
7
1 ----------------------------------------FOOTNOTE---------------------
2 n.5 Goldman later testified she did not know which drawer defendant had
opened.
3
------------------------------------END FOOTNOTE------------------
4
After the activity just described, Goldman testified, defendant and Cullumber
5 left the apartment. They had no money, Goldman believed, when they left. If
Cullumber had money, he spent it on drugs; before defendant left he asked
6 Goldman for money to buy cigarettes. However, when they returned, Cullumber
gave Goldman $40 or $50 in cash, saying it was in partial payment of what he
7 owed her. Cullumber then packed his clothes and left.
8 Sometime thereafter, while Goldman and defendant were watching the news on
television, they saw a story about this crime. Defendant became upset when he
9 learned Mr. Freiri was dead and that Mrs. Caton, while near death, was still
alive. He told Goldman to come into the bedroom, that he wanted to talk to her.
10 Buchanan followed them into the bedroom.
11 Defendant told them he had accompanied Cullumber to the home of Mrs. Caton.
On the one hand, defendant said that Cullumber had assured him “nothing was
12 going to happen.” On the other hand, defendant admitted he had gone with
Cullumber “[t]o help [him] get the money.” With Mrs. Caton present, defendant
13 looked for money in her bedroom, where Cullumber told him it could be found.
When defendant stepped out of the bedroom and saw Mr. Freiri slumped over in
14 a chair, he “knew something had happened.” Cullumber “went berserk. He
came into the bedroom and started beating up on his grandmother.” Defendant
15 and Cullumber found $700, which they split.
16 Defendant was crying, “like he was sad,” when he confessed to Goldman and
Buchanan. Later, when defendant learned Mrs. Caton had died, “he wasn't as
17 depressed as he was before.”
18 While he was confessing, defendant said maybe he should turn himself in.
Goldman advised him against it. When Detective Stokes first asked Goldman
19 whether she knew anything about these crimes, Goldman denied that she did.
Defendant was a good friend of hers, she still liked him, and she did not want to
20 do anything to get him into trouble. She did not want to tell on anyone,
especially someone she liked as much as she liked defendant. Buchanan told her
21 he was going to turn defendant in for the reward. By contrast, Goldman testified
at the preliminary hearing only because she had been subpoenaed. During a
22 break, Goldman told the prosecutor she wanted to make sure defendant knew
she was not the one who turned him in. She was afraid for her life. “I always felt
23 that if you would inform on somebody they would kill you or have you killed.”
24 Defendant said he was not concerned that someone would betray him, “because
if they did, they wouldn't do it again.” On the other hand, Goldman thought that
25 her relationship with defendant was such that “it would take an awful lot to
make him hurt me.”
26
Goldman had “had 20 surgeries on [her] stomach,” and depending on how much
27 pain she was in, she used “speed ball cocaine and heroin” or other “street drugs”
to kill the pain.
28
8
1 b) The Testimony of Gene Buchanan
2 One evening in November 1988, defendant took a venetian blind from the hall
closet of the apartment he shared with Buchanan, Cullumber, Goldman, and two
3 others. Defendant took the blind into the bedroom and shortly thereafter
replaced it in the closet. Buchanan looked into the bedroom. On the bed was a
4 knife belonging to Gail Goldman, a knife with a bone handle and a serrated
edge. People's exhibit No. 18 was that knife, or else it looked exactly like
5 Goldman's knife.
6 Defendant and Cullumber left the apartment around 9:00 p.m. That night
everyone living in the apartment was broke, or claimed to be. However, when
7 defendant and Cullumber returned, defendant opened his wallet and said, “I got
$350,” and, “call the connection.”
8
Buchanan ordered drugs, which were injected by defendant, Cullumber,
9 Goldman, and Buchanan. Afterwards, Cullumber asked Buchanan to take him
for a drive; defendant went along. Defendant directed Buchanan to a canal, and
10 as they drove over it, defendant threw in a pair of shoes. After looking for a
good place to do it, defendant also threw his jacket out of the window.
11
About two days later, Buchanan and defendant were in the living room of the
12 apartment; defendant was watching the news on television. Defendant jumped
up and ran into the bedroom to Goldman. Buchanan heard Goldman say, “ ‘Oh,
13 my God, how low can you go,’ or ‘get’; something to that effect.” Buchanan
went into the bedroom to find out what was going on. Defendant said to him,
14 “I've already told her, so I might as well tell you.”
15 Defendant told Buchanan that “him and R.C. had been over to R.C.'s
grandmother's house, and that they had entered the house—how he had done it,
16 how he had walked up to the door, knocked, faked like R.C. was going to be in
jail, needed to use the phone, and then R.C. sneaked in, they were supposed to
17 tie them up, get this money and everything. And while the defendant is
supposedly in the bedroom looking for the money he hears a commotion, looked
18 out the bedroom door, sees an elderly man with his head slumped down,
considers him dead, and that if you kill one you might as well kill them both.”
19
In response to the prosecutor's questions, Buchanan clarified his testimony.
20 “[Defendant] said that he—only what he thought, he didn't say what he did. He
said that, ‘If you kill one you might as well kill them both.’ ” “[H]e didn't say he
21 said it to R.C., he just said it as that was his opinion.” Defendant did not tell
Buchanan what happened after he had this thought.
22
Defendant also told Buchanan that what prompted his confession was a
23 television story saying that Mrs. Caton “was still alive when she should have
been dead.”
24
Buchanan did not speak to the police until several months after defendant's
25 confession to him. At a convenience store he saw a flyer announcing a reward,
and he left his name with the clerk. He was then contacted by a grandson of
26 Mrs. Caton's, and he agreed to speak to Detective Stokes. However, his
willingness to do so was not motivated by the reward; it was his “Christian
27 upbringing.” He did not tell Goldman he was going to turn defendant in for the
reward.
28
9
1 Defendant had torn up Buchanan's one photograph of his youngest daughter,
which made Buchanan angry. He wanted to throw defendant off the balcony of
2 a motel, but Goldman stopped him.
3 Buchanan used drugs “[a]s often as I can get them.” He injected “speedballs,” a
heroin/cocaine mixture. He used drugs an hour or two before defendant
4 confessed to him, and he continued to do so as recently as the day before his
testimony.
5
2. The Defense Case
6
Defendant testified he did not make the statements attributed to him by
7 Goldman and Buchanan, and that he did not have anything to do with these
crimes. He got along well with Goldman, but not with Buchanan, who was “just
8 a snake; a deceitful person.” His fingerprint was on the venetian blind because it
had fallen off the back door and he had put it into the closet; he did not know
9 why the cord was missing from it. He did rip up the photograph of Buchanan's
daughter.
10
John Inderrienden had known Goldman for five or six years, and they had once
11 lived in the same apartment building. He “wouldn't trust her as far as I could
throw her, and she weighed quite a bit.”
12
Goldman once lived in a house owned by Harry Arax. She did not pay her rent,
13 nor did she pay her bill at his market.
14 Goldman, a former neighbor of Peter Najarian's, told him she was going to be a
witness in a murder case, but that she “didn't know nothing about no murder.”
15
Magadelena Desumala, who ran a halfway house in which Goldman lived on
16 and off for about 10 years, was “like a sister” to Goldman. She said Goldman
told her it was the grandson of the murder victim who had confessed to her.
17
B. Penalty Phase
18
The only witness who testified at the penalty phase, Detective Stokes, was
19 called by the prosecution to provide a foundation for the admission of the
autopsy photographs. No other evidence, aside from a stipulation to defendant's
20 prior burglary conviction, was introduced.
21 Dickey, 35 Cal. 4th at 894-900.
22 III. JURISDICTION
23 Relief by way of a petition for writ of habeas corpus extends to a person in custody
24 pursuant to the judgment of a state court if the custody is in violation of the Constitution or
25 laws or treaties of the United States. 28 U.S.C. §§ 2241(c)(3), 2254(a); Williams v. Taylor, 529
26 U.S. 362, 375 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed
27 by the U.S. Constitution. The challenged conviction arises out of Fresno County Superior
28
10
1 Court, which is located within the jurisdiction of this Court. 28 U.S.C. §§ 2241(d), 2254(a).
2 This action was initiated after April 24, 1996. Therefore, the amendments to 28 U.S.C.
3 § 2254 enacted as part of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),
4 110 Stat. 1214, apply. Lindh v. Murphy, 521 U.S. 320, 336 (1997); see also Van Tran v.
5 Lindsey, 212 F.3d 1143, 1148 (9th Cir. 2000), overruled on other grounds by Lockyer v.
6 Andrade, 538 U.S. 63, 71 (2003); Mann v. Ryan, 828 F.3d 1143, 1151 (9th Cir. 2016).
7 IV. STANDARDS OF REVIEW
8 A. Habeas Corpus
9 Under AEDPA, relitigation of any claim adjudicated on the merits in state court is
10 barred unless a petitioner can show that the state court’s adjudication of his claim:
11 (1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
12 Court of the United States; or
13 (2) resulted in a decision that was based on an unreasonable determination of
the facts in light of the evidence presented in the State court proceeding.
14
15 28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. 86, 98 (2011); Lockyer, 538 U.S. at 70-
16 71; Williams, 529 U.S. at 413.
17 “[A] state has ‘adjudicated’ a petitioner’s constitutional claim ‘on the merits’ for
18 purposes of § 2254(d) when it has decided the petitioner’s right to post-conviction relief on the
19 basis of substance of the constitutional claim advanced, rather than denying the claim on the
20 basis of a procedural or other rule precluding state court review of the merits.” Brown v.
21 Walker, Case No. C 09-04663 JSW, 2014 WL 4757804, at *5 (N.D. Cal. Sept. 24, 2014)
22 (citing Lambert v. Blodgett, 393 F.3d 943, 969 (9th Cir. 2004)).
23 As a threshold matter, this Court must “first decide what constitutes ‘clearly established
24 Federal law, as determined by the Supreme Court of the United States.’” Lockyer, 538 U.S. at
25 71 (quoting 28 U.S.C. § 2254(d)(1)). In ascertaining what is “clearly established Federal law,”
26 this Court must look to the “holdings, as opposed to the dicta, of [the Supreme Court’s]
27 decisions as of the time of the relevant state-court decision.” Williams, 529 U.S. at 412. “In
28
11
1 other words, ‘clearly established Federal law’ under § 2254(d)(1) is the governing legal
2 principle or principles set forth by the Supreme Court at the time the state court renders its
3 decision.” Id. In addition, the Supreme Court decision must “‘squarely address [] the issue in
4 th[e] case’; otherwise, there is no clearly established Federal law for purposes of review under
5 AEDPA.” Moses v. Payne, 555 F.3d 742, 754 (9th Cir. 2009) (quoting Wright v. Van Patten,
6 552 U.S. 120, 125 (2008)); see also Panetti v. Quarterman, 551 U.S. 930, 949 (2007); Carey v.
7 Musladin, 549 U.S. 70, 77 (2006).
8 If no clearly established Federal law exists, the inquiry is at an end and the Court must
9 defer to the state court’s decision. Musladin, 549 U.S. at 77; Wright, 552 U.S. at 126; Moses,
10 555 F.3d, at 760. In addition, the Supreme Court has clarified that habeas relief is unavailable
11 in instances where a state court arguably refuses to extend a governing legal principle to a
12 context in which the principle should have controlled. White v. Woodall, 572 U.S. 415, 426
13 (2014). The Supreme Court stated: “[I]f a habeas court must extend a rationale before it can
14 apply to the facts at hand, then by definition the rationale was not clearly established at the
15 time of the state-court decision.” Id. (quoting Yarborough v. Alvarado, 541 U.S. 652, 666
16 (2004)).
17 If the Court determines there is governing, clearly established Federal law, the Court
18 must then consider whether the state court’s decision was “contrary to, or involved an
19 unreasonable application of, [the] clearly established Federal law.” Lockyer, 538 U.S. at 72
20 (quoting 28 U.S.C. § 2254(d)(1)). “Under the ‘contrary to’ clause, a federal habeas court may
21 grant the writ if the state court arrives at a conclusion opposite to that reached by [the
22 Supreme] Court on a question of law or if the state court decides a case differently than [the]
23 Court has on a set of materially indistinguishable facts.” Williams, 529 U.S. at 412-13; see
24 also Lockyer, 538 U.S. at 72. “The word ‘contrary’ is commonly understood to mean
25 ‘diametrically different,’ ‘opposite in character or nature,’ or ‘mutually opposed.’” Williams,
26 529 U.S. at 405 (quoting Webster’s Third New International Dictionary (1976)). “A state-
27 court decision will certainly be contrary to [Supreme Court] clearly established precedent if the
28
12
1 state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases.”
2 Id.
3 “Under the ‘reasonable application clause,’ a federal habeas court may grant the writ if
4 the state court identifies the correct governing legal principle from [the] Court’s decisions but
5 unreasonably applies that principle to the facts of the prisoner’s case.” Williams, 529 U.S. at
6 413. “[A] federal court may not issue the writ simply because the court concludes in its
7 independent judgment that the relevant state court decision applied clearly established federal
8 law erroneously or incorrectly. Rather, that application must also be unreasonable.” Id. at 411;
9 see also Lockyer, 538 U.S. at 75-76. “A state court’s determination that a claim lacks merit
10 precludes federal habeas relief so long as fair-minded jurists could disagree on the correctness
11 of the state court’s decision.” Richter, 562 U.S. at 101 (citing Yarborough, 541 U.S. at 664).
12 The Supreme Court stated:
13
As a condition for obtaining habeas corpus from a federal court, a state prisoner
14 must show that the state court’s ruling on the claim being presented in federal
court was so lacking in justification that there was an error well understood and
15 comprehended in existing law beyond any possibility for fair-minded
disagreement.
16
17 Id. at 103. In other words, so long as fair-minded jurists could disagree on the correctness of
18 the state courts decision, the decision cannot be considered unreasonable. Id. at 101. In
19 applying this standard, “a habeas court must determine what arguments or theories supported [.
20 . .] or could have supported the state court’s decision; and then it must ask whether it is
21 possible fair-minded jurists could disagree that those arguments or theories are inconsistent
22 with the holding in a prior decision of [the Supreme Court].” Id. at 102. This objective
23 standard of reasonableness applies to review under both subsections of 28 U.S.C. § 2254(d).
24 See Hibbler v. Benedetti, 693 F.3d 1140, 1146-47 (9th Cir. 2012). If the Court determines that
25 the state court decision is objectively unreasonable, and the error is not structural, habeas relief
26 is nonetheless unavailable unless the error had a “substantial and injurious effect or influence”
27 in determining the jury’s verdict. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993); see also
28
13
1 Fry v. Pliler, 551 U.S. 112, 114 (2007).
2 Petitioner has the burden of establishing that the decision of the state court is contrary
3 to or involved an unreasonable application of United States Supreme Court precedent. Baylor
4 v. Estelle, 94 F.3d 1321, 1325 (9th Cir. 1996). Although only Supreme Court law is binding on
5 the states, Ninth Circuit precedent remains relevant persuasive authority in determining
6 whether a state court decision is objectively unreasonable. See LaJoie v. Thompson, 217 F.3d
7 663, 669 n.6 (9th Cir. 2000); Duhaime v. Ducharme, 200 F.3d 597, 600-01 (9th Cir. 1999).
8 AEDPA requires considerable deference to the state courts. “[R]eview under §
9 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on
10 the merits,” Cullen v. Pinholster, 563 U.S. 170, 181 (2011), and “evidence introduced in
11 federal court has no bearing on 2254(d)(1) review.” Id. at 185. “Factual determinations by
12 state courts are presumed correct absent clear and convincing evidence to the contrary.”
13 Miller-El v. Cockrell, 537 U.S. 322, 340 (2003) (citing 28 U.S.C. § 2254(e)(1)). However, a
14 state court factual finding is not entitled to deference if the relevant state court record is
15 unavailable for the federal court to review. Townsend v. Sain, 372 U.S. 293, 319 (1963),
16 overruled on other grounds by Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992), superseded by
17 statute as stated in Williams, 529 U.S. at 433-34.
18 If a petitioner satisfies either subsection (1) or (2) for a claim, then the federal court
19 considers that claim de novo. See Panetti, 551 U.S. at 953 (when § 2254(d) is satisfied, “a
20 federal court must then resolve the claim without the deference AEDPA otherwise requires.”);
21 see also Frantz v. Hazey, 533 F.3d 724, 737 (9th Cir. 2008) (same).
22 In this case, some of Petitioner’s claims and allegations were raised and rejected by the
23 California Supreme Court on direct appeal while others were raised in his state habeas petitions
24 to that court and summarily denied on the merits.
25 In the latter case of summary denial, where the state court decision is unaccompanied
26 by an explanation, “the habeas petitioner’s burden still must be met by showing there was no
27 reasonable basis for the state court to deny relief.” Richter, 562 U.S. at 98. The Supreme
28
14
1 Court stated that “a habeas court must determine what arguments or theories supported or . . .
2 could have supported, the state court’s decision; and then it must ask whether it is possible fair-
3 minded jurists could disagree that those arguments or theories are inconsistent with the holding
4 in a prior decision of this Court.” Id. at 101-03. Petitioner bears “the burden to demonstrate
5 that ‘there was no reasonable basis for the state court to deny relief.’” Walker v. Martel, 709
6 F.3d 925, 939 (9th Cir. 2013) (quoting Richter, 562 U.S. at 98). “Crucially, this is not a de
7 novo review of the constitutional question,” id., as “even a strong case for relief does not mean
8 the state court’s contrary conclusion was unreasonable.” Id. (quoting Richter, 562 U.S. at
9 102); see also Murray v. Schriro, 745 F.3d 984, 996-97 (9th Cir. 2014).
10 When reviewing the California Supreme Court’s summary denial of a petition, this
11 Court must consider that the California Supreme Court’s summary denial of a habeas petition
12 on the merits reflects that court’s determination that:
13
[T]he claims made in th[e] petition do not state a prima facie case entitling the
14 petitioner to relief. It appears that the court generally assumes the allegations in
the petition to be true, but does not accept wholly conclusory allegations, and
15 will also review the record of the trial ... to assess the merits of the petitioner’s
claims.
16
17 Pinholster, 563 U.S. 181 n.12 (quoting In re Clark, 5 Cal. 4th 750, 770 (1993), superseded by
18 statute as stated in Briggs v. Brown, 3 Cal. 5th 808, 841, 845, 848 (2017)); see also Johnson v.
19 Williams, 568 U.S. 289, 300 (2013) (holding that even where the state court does not separately
20 discuss a federal claim there is a presumption that that state court adjudicated the federal claim
21 on the merits).
22
[A] federal court may not second-guess a state court’s fact-finding process
23 unless, after review of the state-court record, it determines that the state court
was not merely wrong, but actually unreasonable.” Taylor v. Maddox, 366 F.3d
24 992, 999 (9th Cir. 2004), abrogated on other grounds by Murray v. Schriro, 745
F.3d 984, 999-1000 (9th Cir. 2014). Federal habeas courts have “no license to
25 redetermine credibility of witnesses whose demeanor has been observed by the
state trial court, but not by them.” Marshall v. Lonberger, 459 U.S. 422, 434,
26 103 S.Ct. 843, 74 L.Ed.2d 646 (1983); accord Mann v. Ryan, 828 F.3d 1143,
1153 (9th Cir. 2016) [Citation].
27
28
15
1 Navarro v. Holland, 698 F. App’x 541, 542 (9th Cir. 2017).
2 If this Court finds Petitioner has clearly made out a prima facie case for relief on a
3 claim, the state court’s summary rejection of that claim would be unreasonable. Nunes v.
4 Mueller, 350 F.3d 1045, 1054 (9th Cir. 2003).
5 For any habeas claim that has not been adjudicated on the merits by the state court, the
6 federal court reviews the claim de novo without the deference usually accorded state courts
7 under 28 U.S.C. § 2254(d)(1). Chaker v. Crogan, 428 F.3d 1215, 1221 (9th Cir. 2005); Pirtle
8 v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002). In such instances, however, the provisions of
9 28 U.S.C. § 2254(e) still apply. Pinholster, 563 U.S. 185 (“Section 2254(e)(2) continues to
10 have force where § 2254(d)(1) does not bar federal habeas relief.”); Pirtle, 313 F.3d, at 1167-
11 68 (stating that state court findings of fact are presumed correct under § 2254(e)(1) even if
12 legal review is de novo).
13 V. PROCEDURAL BARS
14 Certain of Petitioner’s claims were alternatively denied by the California Supreme
15 Court as procedurally barred. As to those claims, Respondent has invoked the independent
16 state ground doctrine, pursuant to which a federal court will not review a question of federal
17 law decided by a state court “if the decision of that court rests on a state law ground that is
18 independent of the federal question and adequate to support the judgment.” Vang v. Nevada,
19 329 F.3d 1069, 1072 (9th Cir. 2003) (quoting Coleman v. Thompson, 501 U.S. 722, 729
20 (1991)).
21 Since “cause and prejudice” can excuse a procedurally defaulted claim, Smith v.
22 Baldwin, 510 F.3d 1127, 1139 (9th Cir. 2007) (quoting Coleman, 501 U.S. at 750), and
23 “prejudice” essentially requires a merits analysis, the Court will proceed to the merits of claims
24 found to be procedurally defaulted without determining whether the state procedural default is
25 adequate and independent to bar relief in federal court. Id. (quoting Coleman, 501 U.S. 732-
26 35).
27 A district court may exercise discretion to proceed to the merits in advance of litigation
28
16
1 of procedural default. Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002) (courts
2 empowered to reach the merits if on their face the allegations are clearly not meritorious
3 despite asserted procedural bar); see also Bell v. Cone, 543 U.S. 447, 451 n.3 (2005) (an
4 application for habeas corpus may be denied on the merits even if unexhausted in state court);
5 Loggins v. Thomas, 654 F.3d 1204, 1215 (11th Cir. 2011) (relief may be denied on the merits
6 where petition is clearly not meritorious despite asserted procedural bar).6
7 VI. PRELIMINARY MATTERS
8 The Court takes judicial notice of the certified record on appeal to the California
9 Supreme Court, all documents on file in the California Supreme Court in the case of People v.
10 Colin Raker Dickey, California Supreme Court Case No. S025519 and all declarations, witness
11 statements, and records filed on Petitioner’s behalf in his state habeas corpus proceedings
12 before the California Supreme Court, In re Colin Dickey, California Supreme Court Case No.
13 S115079, and In re Colin Dickey, California Supreme Court Case No. S165302.
14 VII. REVIEW OF PENALTY PHASE CLAIMS
15 A. Claims Relating to Ineffective Assistance of Counsel
16 1. Legal Standards
17 The Sixth Amendment right to effective assistance of counsel, applicable to the states
18 through the Due Process Clause of the Fourteenth Amendment, applies through the sentencing
19 phase of a trial. See Murray, 745 F.3d, at 1010-11: U.S. Const. amend. VI; U.S. Const. amend.
20 XIV, § 1; Gideon v. Wainwright, 372 U.S. 335, 34345 (1963); Silva v. Woodford, 279 F.3d
21 825, 836 (9th Cir. 2002).
22 The Supreme Court explained the legal standard for assessing a claim of ineffective
23 assistance of counsel in Strickland v. Washington, 466 U.S. 668, 685-87 (1984). Strickland
24 propounded a two-prong test for analysis of claims of ineffective assistance of counsel. The
25 first prong focuses upon whether counsel performed deficiently. The second prong focuses
26 6
Respondent contends certain claims are not cognizable because they create and retroactively apply a “new rule”
of constitutional law under Teague v. Lane, 489 U.S. 288 (1989). (See Doc. No. 105 at 27-28; Doc. No. 143 at
27 42-43.) Unless otherwise noted, the Court declines to address Respondent’s Teague arguments where the claim
lacks merit.
28
17
1 upon whether the petitioner suffered prejudice from counsel’s deficient performance.
2 Conclusory allegations are insufficient to raise a cognizable claim of ineffective
3 assistance. Jones v. Gomez, 66 F.3d 199, 205 (9th Cir. 1995) (conclusory suggestions that
4 counsel provided ineffective assistance “fall far short of stating a valid claim of constitutional
5 violation”).
6 If the petitioner makes an insufficient showing as to either one of the two Strickland
7 components, the reviewing court need not address the other component. Strickland, 466 U.S.
8 at 697.
9 a. Deficient Performance
10 The petitioner must show that counsel’s performance was deficient, requiring a
11 showing that counsel made errors so serious that he or she was not functioning as the “counsel”
12 guaranteed by the Sixth Amendment. Strickland, 466 U.S. at 687. The petitioner must show
13 that “counsel’s representation fell below an objective standard of reasonableness,” and must
14 identify counsel’s alleged acts or omissions that were not the result of reasonable professional
15 judgment considering the circumstances. Richter, 562 U.S. at 104 (citing Strickland, 466 U.S.
16 at 688); United States v. Quintero-Barraza, 78 F.3d 1344, 1348 (9th Cir. 1995).
17 Petitioner must show that counsel’s errors were so egregious as to deprive him of a fair
18 trial, one whose result is reliable. Strickland, 466 U.S. at 688. Judicial scrutiny of counsel’s
19 performance is highly deferential, and the habeas court must guard against the temptation “to
20 second-guess counsel’s assistance after conviction or adverse sentence.” Id. at 689. Instead,
21 the habeas court must make every effort “to eliminate the distorting effects of hindsight, to
22 reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct
23 from counsel’s perspective at the time.” Id.; see also Richter, 562 U.S. at 107.
24 The Supreme Court has “declined to articulate specific guidelines for appropriate
25 attorney conduct and instead ha[s] emphasized that ‘[t]he proper measure of attorney
26 performance remains simply reasonableness under prevailing professional norms.’” Wiggins v.
27 Smith, 539 U.S. 510, 521 (2003) (quoting Strickland, 466 U.S. at 688).
28
18
1 However, “general principles have emerged regarding the duties of criminal defense
2 attorneys that inform [a court’s] view as to the ‘objective standard of reasonableness’ by which
3 [a court must] assess attorney performance, particularly with respect to the duty to investigate.”
4 Summerlin v. Schriro, 427 F.3d 623, 629 (9th Cir. 2005). “[S]trategic choices made after
5 thorough investigation of law and facts relevant to plausible options are virtually
6 unchallengeable.” Strickland, 466 U.S. at 690. Strickland permits counsel to “make a
7 reasonable decision that makes particular investigations unnecessary.” Richter, 562 U.S. at
8 106 (citing Strickland, 466 U.S. at 691).
9 However, strategic choices made after less than complete investigation are reasonable
10 precisely to the extent that reasonable professional judgments support the limitations on
11 investigation. In other words, counsel has a duty to make reasonable investigations or to make
12 a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness
13 case, a particular decision not to investigate must be directly assessed for reasonableness in all
14 the circumstances, applying a heavy measure of deference to counsel’s judgment. Wiggins,
15 539 U.S. at 521 (quoting Strickland, 466 U.S. at 690–91); see also Thomas v. Chappell, 678
16 F.3d 1086, 1104 (9th Cir. 2012) (counsel’s decision not to call a witness can only be
17 considered tactical if he had “sufficient information with which to make an informed
18 decision”); Jennings v. Woodford, 290 F.3d 1006, 1016 (9th Cir. 2002) (counsel’s choice of
19 alibi defense and rejection of mental health defense not reasonable strategy where counsel
20 failed to investigate possible mental defenses).
21 Counsel may formulate a strategy, reasonable at the time, and balance limited resources
22 consistent with effective trial tactics and strategies. See Richter, 562 U.S. at 107. Counsel is
23 not required to pursue an investigation that would be fruitless, or harmful to the defense. Id. at
24 108. A reviewing court “need not determine the actual explanation for counsel’s [strategic
25 choices], so long as his [choices fall] within the range of reasonable representation.” Morris v.
26 State of California, 966 F.2d 448, 456 (9th Cir. 1991).
27 A court indulges a “‘strong presumption’ that counsel’s representation was within the
28
19
1 ‘wide range’ of reasonable professional assistance.” Richter, 562 U.S. at 104 (quoting
2 Strickland, 466 U.S. at 687); Sanders v. Ratelle, 21 F.3d 1446, 1456 (9th Cir. 1994). This
3 presumption of reasonableness means that not only do we “give the attorneys the benefit of the
4 doubt,” we must also “affirmatively entertain the range of possible reasons counsel may have
5 had for proceeding as they did.” Pinholster, 563 U.S. at 196.
6 The basic requirements of Strickland apply with equal force in the penalty phase.
7 Petitioner must show that counsel’s actions fell below an objective standard of reasonableness,
8 and that the alleged errors resulted in prejudice. Strickland, 466 U.S. at 687-88.
9 b. Prejudice
10 The petitioner also must demonstrate prejudice, that is, he must show that “there is a
11 reasonable probability that, but for counsel’s unprofessional errors, the result . . . would have
12 been different.” Strickland, 466 U.S. at 694. “It is not enough ‘to show that the errors had
13 some conceivable effect on the outcome of the proceeding.’” Richter, 562 U.S. at 104 (quoting
14 Strickland, 466 U.S. at 693). “Counsel’s errors must be ‘so serious as to deprive the defendant
15 of a fair trial, a trial whose result is reliable.’” Id. (quoting Strickland, 466 U.S. at 687). Under
16 this standard, we ask “whether it is ‘reasonably likely’ the result would have been different.”
17 Richter, 562 U.S. at 111 (quoting Strickland, 466 U.S. at 696).
18 That is, only when “the likelihood of a different result [is] substantial, not just
19 conceivable,” has the petitioner met Strickland’s demand that defense errors were “so serious
20 as to deprive [him] of a fair trial.” Id. at 104 (quoting Strickland, 466 U.S. at 687). A court
21 need not determine whether counsel’s performance was deficient before examining the
22 prejudice suffered by the petitioner because of the alleged deficiencies. Strickland, 466 U.S. at
23 697. Since the petitioner must affirmatively prove prejudice, any deficiency that does not
24 result in prejudice must necessarily fail.
25 Petitioner must show “a reasonable probability that, but for counsel’s unprofessional
26 errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 693-94.
27 To assess that probability, the reviewing court must consider the totality of the available
28
20
1 mitigation evidence and reweigh it against the evidence in aggravation. Porter v. McCollum,
2 558 U.S. 30, 41 (2009) (citing Williams, 529 U.S. at 397-398). The court must consider
3 whether the likelihood of a different result is “sufficient to undermine confidence in the
4 outcome” actually reached at sentencing. Rompilla v. Beard, 545 U.S. 374, 393 (2005)
5 (quoting Strickland, 466 U.S. at 694).
6 Assessing prejudice at the penalty phase implicates a three-step inquiry: First, the court
7 evaluates and weighs the totality of the available mitigating evidence; second, it evaluates and
8 weighs the aggravating evidence and any rebuttal evidence that could have been adduced by
9 the government had the mitigating evidence been introduced; and third, it reweighs the
10 evidence in aggravation against the totality of available mitigating evidence to determine
11 whether there is a reasonable probability that, absent the errors, the sentencer would have
12 concluded that the balance of aggravating and mitigating circumstances did not warrant death.
13 Apelt v. Ryan, 878 F.3d 800, 832 (9th Cir. 2017); see also Andrews v. Davis, 866 F.3d 994,
14 1020 (9th Cir. 2017), reh’g en banc granted by 888 F.3d 1020 (9th Cir. 2018); Strickland, 466
15 U.S. at 695.
16 “The defendant bears the highly demanding and heavy burden of establishing actual
17 prejudice.” Livaditis v. Davis, No. 14-99011, 2019 WL 3756064, at 11 (9th Cir. Aug. 9, 2019)
18 (quoting Bible v. Ryan, 571 F.3d 860, 870 (9th Cir. 2009)).
19 Counsel has an “obligation to conduct a thorough investigation of the defendant’s
20 background,” Williams, 529 U.S. at 396, and a duty to investigate, develop, and present
21 mitigation evidence during penalty phase proceedings. Wiggins, 539 U.S. at 521-23. “At the
22 very least, counsel should obtain readily available documentary evidence such as school,
23 employment, and medical records, and obtain information about the defendant’s character and
24 background.” Robinson v. Schriro, 595 F.3d 1086, 1108-09 (9th Cir. 2010) (citing Boyde v.
25 California, 494 U.S. 370, 382 (1990)).
26 c. Application of Strickland under AEDPA
27 Under AEDPA, the court does not apply Strickland de novo. Rather, the court must
28
21
1 determine whether the state court’s application of Strickland was unreasonable. Richter, 562
2 U.S. at 99-100. Establishing that a state court’s application of Strickland was unreasonable
3 under 28 U.S.C. § 2254(d) is very difficult. Richter, 562 U.S. at 100. Since the standards
4 created by Strickland and § 2254(d) are both “highly deferential,” when the two are applied in
5 tandem, review is “doubly” so. Richter, 562 U.S. at 105 (quoting Knowles v. Mirzayance, 556
6 U.S. 111, 123 (2009)); see also Cheney v. Washington, 614 F.3d 987, 995 (9th Cir. 2010)
7 (quoting Yarborough v. Gentry, 540 U.S. 1, 5-6 (2003)). Further, because the Strickland rule is
8 a “general” one, courts have “more leeway . . . in reaching outcomes in case-by-case
9 determinations” and the “range of reasonable applications is substantial.” Richter, 562 U.S. at
10 101; see also Premo v. Moore, 562 U.S. 115, 127 (2011) (noting the leeway afforded state
11 courts under AEDPA in applying general standards).
12 Here again, Strickland dictates a “‘strong presumption’ that counsel’s representation
13 was within the ‘wide range’ of reasonable professional assistance.” Richter, 562 U.S. at 104
14 (quoting Strickland, 466 U.S. at 687). AEDPA, acting in tandem with Strickland asks whether
15 the state court’s application of Strickland was unreasonable. Richter, 562 U.S. at 99-100.
16 2. Claims III(C-E)
17 Petitioner alleges counsel Schultz was ineffective by failing to investigate, develop, and
18 present mitigating psychosocial evidence (i.e. claim III(C)) including opinion by social history
19 and mental health experts (i.e. claim III(D)), and lay witness testimony (i.e. claim III(E)),
20 violating his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments. (Doc. No. 51-
21 1, ¶¶ 433-568.)
22 a. Supplemental Legal Standards
23 The Eighth Amendment requires that the sentencer not be precluded from considering,
24 as a mitigating factor, any aspect of a defendant’s character or record and any of the
25 circumstances of the offense that the defendant proffers as a basis for a sentence less than
26 death. Eddings v. Oklahoma, 455 U.S. 104, 110 (1982) (trial court deficient by refusing to
27 consider mitigating evidence of defendant’s violent family history and mental/emotional
28
22
1 disturbance); Lockett v. Ohio, 438 U.S. 586, 604 (1978) (sentencer in a capital case shall not be
2 precluded from considering, as a mitigating factor, any aspect of a defendant's character or
3 record and any of the circumstances of the offense).
4 To determine whether the investigation was reasonable, the court “must conduct an
5 objective review of [counsel’s] performance, measured for reasonableness under prevailing
6 professional norms, which includes a context-dependent consideration of the challenged
7 conduct as seen from counsel’s perspective at the time.” Wiggins, 539 U.S. at 523; See also
8 Rompilla, 545 U.S. at 381; Strickland, 466 U.S. at 699 (counsel could “reasonably surmise . . .
9 that character and psychological evidence would be of little help”); Burger v. Kemp, 483 U.S.
10 776, 794 (1987) (limited investigation reasonable because all witnesses brought to counsel’s
11 attention provided predominantly harmful information).
12 b. State Court Direct and Collateral Review
13 Petitioner presented in the SSHCP claim III including all subclaims (Lod. Doc. No. 30,
14 SSHCP, at 200-302) which was summarily denied on the merits with certain subclaims
15 including subclaims C, D and E denied on procedural grounds (Lod. Doc. No. 31, Order
16 Denying Cal. Pet., In re Colin Raker Dickey, No. S165302 (May 29, 2012)).
17 Petitioner also claimed on direct appeal that trial counsel was ineffective by failing to
18 present any mitigating evidence. (Lod. Doc. No. 1, Appellant’s Opening Brief, hereinafter
19 “AOB”, at claim XXI.) The California Supreme Court denied the claim on the merits. Dickey,
20 35 Cal. 4th at 926-27.
21 c. Analysis
22 i. Deficient Performance
23 Petitioner argues that Schultz’s decision to forego presentation of then available
24 mitigating psychosocial evidence was not supported by a reasonable investigation and trial
25 tactics. (Doc. No. 51-1, ¶¶ 433-568; see also RT 5108-13; Lambright v. Schriro, 490 F.3d
26 1103, 1120 (9th Cir. 2007) (counsel has a duty to investigate all potentially mitigating
27 evidence); see also Penal Code § 190.3(k)); Lockett, 438 U.S. at 604 (“[I]n capital cases the
28
23
1 fundamental respect for humanity underlying the Eighth Amendment . . . requires
2 consideration of the character and record of the individual offender and the circumstances of
3 the particular offense as a constitutionally indispensable part of the process of inflicting the
4 penalty of death).
5 Particularly, he argues Schultz could not have made an informed tactical decision
6 without consideration of his habeas proffered evidence of: (i) pervasive physical and sexual
7 abuse, mental illness, neglect and poverty, (ii) organic brain and mental impairments, (iii)
8 substance abuse including drugs and alcohol, and (iv) and his positive attributes. (Doc. No.
9 142 at 63-140 (citing Daniels v. Woodford, 428 F.3d 1181, 1206 (9th Cir. 2005)) (counsel
10 ineffective for failure to investigate and present mitigating evidence of mental disorder); see
11 also Penal Code section 190.3(d, h, k); Doc. No. 144 at 19 n.3, 22-23.)
12 The record reflects Schultz did not present any mitigating evidence at the penalty trial,
13 opting instead to briefly argue his penalty defense theory to the jury. (CT 478-480.) Schultz’s
14 primary penalty defense relied upon lingering doubt raised by guilt phase evidence of
15 circumstances surrounding Petitioner’s participation in the crimes as a mere aider and abettor
16 of felony murder. (Pet. Ex. 12 ¶ 5.) Schultz argued this primary defense to the jury at penalty
17 closing. (RT 5139-40.)
18 The California Supreme Court denied claimed ineffectiveness arising from counsel’s
19 failure to present any mitigating evidence at the penalty trial, stating that:
20
Defendant contends he received ineffective assistance of counsel because
21 counsel presented no mitigating evidence in the penalty phase.
22 “On a silent record ... we will not assume that the defense counsel's failure to
present mitigating evidence rendered his assistance ineffective. Any assertion
23 that counsel was inadequate in this regard must be raised on habeas corpus.”
(People v. Diaz (1992) 3 Cal. 4th 495, 566, 11 Cal.Rptr.2d 353, 834 P.2d 1171
24 (Diaz ); see People v. Anderson (2001) 25 Cal. 4th 543, 598, 106 Cal.Rptr.2d
575, 22 P.3d 347.)
25
The record is not silent here. However, insofar as it speaks, it undercuts
26 defendant's ineffectiveness claim.
27 Defendant contends his mother should have been called to testify as to the
“awful conditions of [his] upbringing.” A declaration by defendant's mother was
28
24
attached to the motion for a new trial filed by defendant's new counsel
1 appointed for the purpose of preparing the motion. In the declaration,
defendant's mother states she had been available to testify that when defendant
2 was growing up he “suffered abusive beatings” by his father, and that at times
she had taken out her “rage” on defendant, beating him with a belt.
3
Prior to the penalty phase, defense counsel discussed with the court his concern
4 that such “abuse” could be viewed as harsh punishment, raising the question, on
rebuttal, whether defendant had done something to provoke such punishment.
5 This was a concern because defendant had, indeed, done something deserving of
severe punishment—he had sexually molested his little sister. The abuse
6 occurred over a period of two years, starting when defendant was 12 and his
sister was only 5.16 Noting such rebuttal would be “devastating,” defense
7 counsel said he would have to decide whether the risk was too great. In the end,
defense counsel called neither defendant's mother nor any other witness.
8
9 ----------------------------------------FOOTNOTE---------------------
10 n.16 In her declaration filed in support of defendant's new trial motion,
defendant's mother acknowledged defendant was “accused” of molesting his
11 sister, but stated she “had no personal knowledge” of it. However, the probation
report reveals defendant was adjudged guilty of the conduct by a juvenile court.
12
------------------------------------END FOOTNOTE------------------
13
14
When defense counsel's reasons are not readily apparent from the record, we
15 will not assume he was ineffective unless his challenged conduct could have
had “ ‘ “no conceivable tactical purpose.” ’ ” (Earp, supra, 20 Cal. 4th at p. 896,
16 85 Cal.Rptr.2d 857, 978 P.2d 15; People v. Hines (1997) 15 Cal. 4th 997, 1065,
64 Cal.Rptr.2d 594, 938 P.2d 388; Diaz, supra, 3 Cal. 4th at p. 558, 11
17 Cal.Rptr.2d 353, 834 P.2d 1171.)
18 Here, defense counsel's tactical purpose is readily apparent from the record.
Indeed, in arguing the motion for a new trial, defendant's substitute counsel
19 expressly acknowledged defense counsel made a “strategic and tactical
decision” in not calling defendant's mother. Accordingly, we reject this
20 assignment of ineffectiveness of counsel.
21
22 Dickey, 35 Cal. 4th at 926–27.
23 The California Supreme Court reasonably rejected these claims, for the reasons stated
24 by that court and those that follow.
25 (1) Reasonable Defense Investigation Supported Trial Tactics
26 Aggravating Value of Petitioner’s Criminal History
27 Prior to the start of the penalty trial, the prosecutor stated the aggravating evidence
28
25
1 would consist of autopsy photos of the victims (as circumstances of the crime); and Petitioner’s
2 prior conviction in Nevada for second degree burglary without going into details of that
3 conviction. (RT 5081-83, 5085.)
4 Schultz had a longstanding concern that presentation of mitigating evidence might open
5 the door to prosecution rebuttal with aggravating evidence of Petitioner’s prior criminal
6 conduct, i.e. molestation of his sister and the Nevada burglary which involved sexual assault of
7 the corpse of a seven-year-old girl. (Pet. Ex. 12 ¶ 13.) As early as August 1989, Schultz and
8 Petitioner discussed the possibility the Nevada burglary might be used against Petitioner at
9 sentencing. (Pet. Ex. 23 at SH002090.)
10 Prior to the penalty trial, Schultz, the prosecutor and the trial judge discussed in limine
11 whether and the extent to which presentation of mitigating character evidence might open the
12 door details of Petitioner’s criminal history. (RT 5080-82, 5108-13.) Schultz discussed his
13 concern that details of Petitioner’s prior criminal acts might come before the jury, particularly
14 if Petitioner’s mother were to testify at the penalty trial. (RT 5108-09.)
15 The trial court and prosecutor suggested that evidence of the prior criminal conduct
16 could not come in as long as Schultz avoided eliciting from Petitioner’s mother, Ms. Walters,
17 character or opinion testimony about Petitioner. (See RT 5108-12.; Doc. No. 51-1, ¶ 556-57;
18 see also People v. Ramirez, 50 Cal. 3d 1158, 1191-1193 (1990) (absent defense presentation of
19 good character evidence the prosecution may not introduce evidence of prior misconduct). In
20 the course thereof, the prosecutor conceded the risk that a trial witness might stray during
21 testimony even if instructed not to do so, and that “I’m not gonna say that I’m not going to try
22 to get that sexual escapade in front of the jury, if I feel it’s proper, and if I feel I’m entitled to
23 do it under the laws of evidence.” (RT 5112.)
24 Schultz took the matter under consideration, stating that “I have to review the available
25 information and decide whether – discuss the problem with my witness and decide whether or
26 not the risk is too great.” (Id.)
27 The trial court informed Schultz that:
28
26
1
[I]f you want, and if you determine asking certain questions, I’m happy to listen
2 to what you have to say further and then give you an option as to whether or not
I’m inclined to let – Mr. Hahus ask questions concerning this particular incident
3 or not.
4 (Doc. No. 51-1, n.39, citing RT at 5113.)
5 Schultz replied:
6
I understand what the Court’s position is, I just have to make a – make a
7 determination based after – just on a conversation with the witness and with the
– the information available and see if I can – if I can structure it narrow enough
8 to avoid the pitfalls.
9
10 (RT 5113.)
11 Petitioner argues Schultz unreasonably failed to accept the trial court’s offer to more
12 specifically “investigat[e] the matter with the court[.]” (Doc. No. 51-1 ¶ 558, citing RT 5112-
13 13; see also Doc. No. 142 at 132-34, citing RT 5108-13.) He argues Schultz was not tactically
14 motivated in this regard, but rather operated under a:
15
[T]otally stigmatized misunderstanding and profoundly debilitating lack of
16 knowledge and denial of the myriad ways in which Colin’s chronic, torturous,
sadistic and perverse childhood victimization not only contributed to the
17 multiple undiagnosed mental illnesses and serious organic brain damage that
deformed his character, but defined his abnormal and perverse sexual behavior.
18 With no understanding of the sexual torment within which Colin was embedded
as a child and adolescent, his trial counsel “rested” rather than allow any
19 “character” evidence at all to be presented.
20
21 (Pet. Ex. 2, at 6.)]]
22 However, the record reasonably suggests Schultz attempted to structure the mitigation
23 defense to “avoid the pitfalls,” upon consideration of the guidance provided by the trial court
24 and the prosecutor during the in limine hearing. (RT 5113; see Siripongs v. Calderon, 133
25 F.3d 732, 736 (9th Cir. 1998) (the relevant inquiry is not what counsel could have pursued, but
26 whether the choices counsel made were reasonable).
27 For example, Schultz was aware the prosecutor had indicated he would not impeach
28
27
1 Petitioner’s mother with negative evidence of Petitioner’s character if her testimony avoided
2 evidence of his good character. (See Doc. No. 51-1, ¶ 461; RT 5111-13; see also Pet. Ex. 15 ¶
3 5.) Still nothing therein allayed Schultz’s concern the mother might be “baited” into character
4 testimony on cross-examination, as discussed below. (Pet. Ex. 12 ¶ 13.) Schultz recounted his
5 thought process and rationale in his habeas declaration, as follows:
6
Prior to the penalty phase, at an in limine hearing with the judge and prosecutor,
7 we discussed the admissibility of character evidence regarding the defendant,
including evidence of sexual molestations by the defendant of his sister in his
8 early adolescence and an act of necrophilia at age 17 that resulted in his felony
prior in adult court for second degree burglary in Nevada. The court confirmed
9 that this character evidence could not be broached in the penalty phase as long
as the defense did not place the defendant’s character in issue in its case in
10 chief. As a result of this ruling, I decided not to use a mental health defense in
the mitigation case. I knew that the prosecution case for aggravation would
11 consist only of the defendant’s felony prior, and photographs of the victims. I
did not feel that this evidence would weigh heavily in aggravation. I planned to
12 argue that the defendant was not a participant in the actual killings, and
therefore that the photographs did not depict circumstances attributable to his
13 role in the underlying felonies. I felt that evidence of the defendant’s difficult
childhood and abusive treatment by his parents could be effectively presented
14 through the repentant testimony of his mother, and that she could be coached to
avoid raising the issue of her son’s character.
15
16 As a result, approximately two weeks before the penalty phase, I contacted the
defendant’s mother, Linda Walters, at her home in Washington and arranged to
17 have her attend the penalty phase and to testify. We had approximately four
telephone conversations, lasting a total of two hours, before she arrived in
18 Fresno the afternoon before her scheduled testimony. I met with Ms. Walters
twice for approximately two hours total to prepare her for her testimony. In my
19 conversations with her, Ms. Walters appears to have a good grasp of the
relevant family history. She appeared ready, willing and able to testify to her
20 culpable role in her son’s abusive upbringing. But, she indicated to me that
whether she was asked or not asked whether or not her son was a good boy, she
21 would have to respond that he was or volunteer the information given the
opportunity. This scared me because, while I felt that I could pose the questions
22 to her in a narrow enough fashion to avoid her reference to character evidence, I
felt that the prosecutor could easily bait her into making a positive character
23 statement about her son, and that he then could introduce evidence of the
defendant’s past misdeeds. I determined that the risk of Ms. Walters testifying
24 was too great in comparison to the potential benefit. I told her this at our second
meeting at breakfast on the morning scheduled for her testimony. She did not
25 attend the penalty phase proceedings and left Fresno later that day without
seeing or speaking to [Petitioner]. No evidence was presented by the defense at
26 the penalty phase.
27 (Pet. Ex. 12 ¶ 13.)
28
28
1 Defense Social History Investigation
2 Petitioner argues the defense social history investigation was inadequate because it was
3 started late; denied Petitioner the opportunity to assist in the defense; did not involve experts;
4 and was incomplete. (Doc. No. 51-1, ¶¶ 441, 459, 471-472, 534.)
5 “The failure to timely prepare a penalty-phase mitigation case is . . . error.” Kayer v.
6 Ryan, 923 F.3d 692, 714 (9 th Cir. 2019) (citing Allen v. Woodford, 395 F.3d 979, 1001 (9th
7 Cir. 2005)). The Kayer court held that the failure of trial counsel to begin the penalty phase
8 investigation promptly upon appointment, instead delaying until after the guilty verdict, fell
9 below an objective standard of reasonableness. 923 F.3d at 715 (citing Strickland, 466 U.S. at
10 688).
11 “[T]he scope of a counsel’s pretrial investigation necessarily follows from the decision
12 as to what the theory of defense will be.” Soffar v. Dretke, 368 F.3d 441, 473 (5th Cir. 2004).
13 In determining whether counsel made reasonable tactical decisions about certain evidence, a
14 court focuses on whether the investigation supporting counsel’s decision to introduce or omit
15 certain evidence was itself reasonable. Wiggins, 539 U.S. at 523. Limited investigation may
16 be reasonable when it demonstrates that presenting certain evidence “would have been
17 counterproductive, or that further investigation would have been fruitless.” Id. at 525.
18 The record reflects that the defense investigation of guilt and penalty issues began well
19 before Petitioner’s April 1990 arraignment. (CT 232.) As early as April 1989, the defense
20 team including Schultz began a series of interviews with Petitioner. (See Pet. Ex. 23 at
21 SH002038-2137.) Petitioner appears to concede as much. (See Doc. No. 51-1 ¶ 441.) Schultz
22 and defense team garnered information including the identities and whereabouts of Petitioner’s
23 family members. (Pet. Ex. 23 at SH002038-2137; see also Pet. Ex. 2 at 106-09.) Petitioner
24 told the team of beatings and abuse he received at home and of his juvenile molestation
25 adjudication involving his sister, albeit he denied molesting her. (Id.) He told the defense
26 team about his father’s criminal activity; his drug use; living with various relatives and
27 sometimes running away; traveling to Reno, Nevada, and enrolling in and then dropping out of
28
29
1 Reno High School.
2 Petitioner also provided information relating to his own criminal history including that:
3 he participated as a teenager in various burglaries (Pet. Ex. 23 at SH002076-77) and was
4 arrested in Nevada and convicted as an adult of second-degree felony burglary relating to an
5 act of necrophilia. (Id., at SH002090). Notably, during an August 1989 interview, Schultz
6 specifically discussed in some detail the potential use of the Nevada conviction against
7 Petitioner at the penalty phase; that Schultz had seen newspaper articles regarding that crime
8 and that Schultz did not want to delay assembling information on Petitioner’s criminal record.
9 (Pet. Ex. 23 at SH002091-94.)
10 At that early stage, Petitioner himself expressed concern the Nevada conviction might
11 come in and bias the jury. Petitioner suggested a possible motion to change venue. (Id.)
12 Schultz confirmed his trial strategy of keeping the Nevada conviction from the jury. (Id.)
13 Noting Petitioner’s hesitance to talk about the burglary and related necrophilia, Schultz
14 specifically explained to him why the defense team need detailed information on such matters.
15 (See Pet. Ex. 2 at 109.) Petitioner went on to provide certain details of his sentence and his
16 time in a Nevada prison. (Id.)
17 Significantly, defense investigator King interviewed Petitioner’s mother, Linda Dickey,
18 and four months prior to trial prepared Schultz with an August 1990 written social history that
19 included the following information:
20
Petitioner was healthy growing up, with no unusual diseases or medical
21 problems; he was sometimes hyperactive and developed a nervous twitch
around age 9 or 10 years;
22
Petitioner’s family life included physical abuse, particularly, the father beat
23 Petitioner severely, but also included family vacations to places such as
Disneyland and the San Diego Zoo;
24
Petitioner’s parents drank and used drugs, passed bad checks, were sometimes
25 without housing arrangements, living with relatives or others, the father had
difficulty holding a job due to his drinking, at times the father was in jail or
26 otherwise absent from the home, and the family lived on welfare;
27 Petitioner and his siblings witnessed and were victims of violence in the home;
28
30
The mother started working in fast food, became heavily addicted to drugs,
1 engaged in sexual liaisons and severe beatings of the children including
Petitioner;
2
The father, Donald Dickey, engaged in sexual misconduct with relatives
3 including the repeated rape of mother’s 13-year-old sister while the children
including Petitioner watched;
4
Petitioner sometimes acted strangely, abusing his younger bother;
5
Petitioner sexually molested his younger sister for a period of years;
6
In 1979, Petitioner’s mother divorced his father noting repeated criminal
7 conduct, beatings and the father’s abuse of the children and sexual molestation
of her daughter, whereupon they lost their home to foreclosure, Petitioner
8 remained with his father;
9 The mother had little contact with Petitioner after he turned 14 years old noting
that she feared him and her husband but did visit Petitioner while he was in
10 prison in Nevada on the burglary charge stemming from the necrophilia event
(id.);
11
The father became a fugitive following the molestation conviction in 1979 and
12 his whereabout since then are unknown.
13
14 (Pet. Ex. 23 at SH002040-49; see also Pet. Ex. 2 at 110-20; Pet. Ex. 15 ¶¶ 2, 5.)
15 Schultz, contemplating possible presentation of social history evidence in mitigation,
16 personally contacted Ms. Walters about two week before the penalty phase and engaged in
17 multiple phone conversations over the course of approximately four hours relating to her
18 appearance and testimony. (Pet. Ex. 12 at ¶¶ 13; Pet. Ex. 15 ¶¶ 2-5; see also Doc. No. 142 at
19 65-66.) He also provided in-person witness preparation of about the same length. (Id.)
20 Defense Mental State Investigation
21 Petitioner argues the mental state investigation was inadequate because it was started
22 late; denied Petitioner the opportunity to assist in the defense; did not involve experts; and was
23 incomplete. (Doc. No. 51-1, ¶¶ 441, 459, 471-472, 534.) However, the record reflects the
24 defense team counsel consulted with two mental health experts in preparation for the guilt
25 phase. Neither expert opined in favor of a mental state defense.
26 Defense psychiatrist Dr. John Hackett, who interviewed Petitioner in jail during August
27 1989, found him oriented and of average intelligence. (Pet. Ex. 23 at SH04457.) Dr. Hackett
28
31
1 found Petitioner unlikely to be honest, with an “angry…self-defeating personality style [that]
2 will get in the way” of the defense. (Pet. Ex. 2 at 112; see also Pet. Ex. 23 at SH04452-56.)
3 Dr. Hackett stated his belief that although Petitioner was possibly suicidal, he was not
4 incompetent. (Pet. Ex. 23 at SH04453, 4457; see also Pet. Ex. 2 at 21.)
5 Dr. Hackett also extensively reviewed records supplied by the defense team including
6 of Petitioner’s necrophilia which presumptively included probation reports of his dysfunctional
7 family background, aberrant upbringing and sexual molestation of his sister. (Id.) Dr. Hackett
8 described Petitioner’s perverse sexual excitement over the young girl’s corpse, necrophilia, and
9 ultimate depositing of the corpse in a dumpster. (Id.) Dr. Hackett suggested Petitioner had an
10 aberrant and traumatic upbringing that could be developed in mitigation. (Id., at 113.) Dr.
11 Hackett diagnosed Petitioner with severe antisocial personality disorder and atypical
12 psychosexual disorder. (Id.)
13 Psychologist Dr. Larry “Buzz” Thompson examined Petitioner in jail and provided a
14 July 1990 report finding that Petitioner was anxious, mildly depressed and cynical (Pet. Ex. 2
15 at 114-15; Pet. Ex. 23 at SH002287-90), with no obvious symptoms of psychosis (id.). Dr.
16 Thompson noted Petitioner’s drug use and criminal past. (Id.) Dr. Thompson opined that “in
17 the absence of any evidence of psychotic thought process coupled with [Petitioner’s] firmly
18 stated intention not to plea bargain, I believe a psychiatric defense would be of no value.” (Id.)
19 Dr. Thompson found Petitioner to be “fairly sophisticated at anticipating the questions
20 that would be asked of him in an interview setting and his answers [to be] reasonable and well
21 structured, if very pat.” (Id. at 3.)
22 Dr. Thompson averred that “[w]hile [Petitioner] may qualify for a diagnosis in the area
23 of character (personality) disorder . . . I can see no point in pursuing one for the purpose of his
24 legal defense.” (Id., at 4; see also Pet. Ex. 2 at 115.) Dr. Thompson suggest that Petitioner
25 “should be used as a witness in his own behalf.” (Pet. Ex. 19 attachment “A” at 3.)
26 This Court observed the findings of these defense experts in its prior order denying
27 guilt phase claims, as follows:
28
32
1
Schultz engaged in the noted pre-trial preparations including consultation with
2 two mental health experts – psychiatrist Dr. John Hackett who concluded
petitioner was possibly suicidal, and psychologist Larry Thompson who
3 concluded petitioner mildly depressed. (Doc. No. 51-1 ¶ 523; see also SSHCP,
Ex. 19 ¶ 9.) Schultz could reasonably have relied upon these experts in making
4 strategic decisions not to assert mental defenses at the guilty phase or conduct
further related investigation. (See e.g., claims II(B), II(C).)
5
Additionally, Schultz and his team discussed petitioner’s background with
6 petitioner’s mother. The state supreme court could reasonably have found that
Schultz had concerns relating to potentially unfavorable behavioral, character
7 and bad acts evidence and that such were an objectively reasonable basis not to
further pursue such matters during the guilt phase. (SHCP, Ex. B ¶ 13.)
8
9 (Doc. No. 135 at 32.)
10
Petitioner concedes that Schultz’s pre-trial preparations included noted
11 consultation with two mental health experts – psychiatrist Dr. John Hackett who
found petitioner possibly suicidal (Doc. No. 51-1 ¶ 523), and psychologist Larry
12 Thompson (id.; SSHCP, Ex. 19) who found petitioner mildly depressed. The
state supreme court could reasonably have found Schultz’s decision not to
13 pursue guilty phase mental state defenses was objectively reasonable.
14
15 (Doc. No. 135 at 39-40.)
16
Petitioner was interviewed in jail by Dr. Hackett, ((Doc. No. 51-1 ¶ 523;
17 SSHCP, Ex. 2 at 119-120), who diagnosed him with antisocial personality
disorder but nonetheless found him competent to assist in his defense (id.).
18 Petitioner also was evaluated by Dr. Thompson (id. at 114), who found
Petitioner mildly depressed (SSHCP, Ex. 2 at 121-23; id. at Ex. 19) but showing
19 no obvious symptoms of psychosis either manifest or latent. (SSHCP, Ex. 2 at
122). Dr. Thompson opined that a psychiatric defense would be of no value
20 (id.).
21 (Doc. No. 135 at 45.)
22 Additionally, Petitioner’s argument he was denied the ability to assist in his defense
23 fails for the reasons stated in the discussion of claims II(I), III(B), V, VI, and VII, post.
24 Decision to Forego Further Social History Investigation was Reasonable
25 The state supreme court reasonably could find Petitioner’s habeas proffered social
26 history evidence was not a basis for further penalty defense investigation. (Doc. No. 51-1, ¶
27 563; see Doc. No. 142 at 139.)
28
33
1 Petitioner points to habeas proffered evidence from family members and acquaintances
2 of familial: mental illness (Pet. Ex. 1 ¶ 11; Pet. Ex. 3 ¶¶ 19, 20, 21); physical and sexual abuse
3 (Pet. Ex. 1 ¶¶ 4-10, 12-13, 18, 21; Pet., Ex. 3 ¶ 12; Pet. Ex. 4 ¶¶ 5, 8, 9, 17, 19, 29; Pet. Ex. 5
4 ¶¶ 5, 6, 10; Pet. Ex. 6 ¶¶ 4, 5; Pet. Ex. 7 ¶¶ 5, 7, 9; Pet. Ex. 8 ¶¶ 4, 6, 7, 8, 10, 11, 13, 15; Pet.
5 Ex. 15 ¶ 7; Pet. Ex. 17 ¶ 4; Pet. Ex. 18 ¶ 4; Pet. Ex. 20 ¶¶ 5-6; Pet. Ex. 21 ¶ 9); violent and
6 immoral activity (Pet. Ex. 1 ¶¶ 16, 19; Pet. Ex. 3 ¶ 5; Pet. Ex. 7 ¶¶ 14, 18, 19; Pet. Ex. 8 ¶ 16;
7 Pet. Ex. 15 ¶ 7; Pet. Ex. 21 ¶¶ 2, 3, 7); deprivation, neglect and poverty (Pet. Ex. 4 ¶¶ 12, 14,
8 15, 16; Pet. Ex. 5 ¶¶ 4, 14, 15; Pet. Ex. 6 ¶ 7; Pet. Ex. 8 ¶ 5; Pet. Ex. 16 ¶ 2; Pet. Ex. 17 ¶ 9);
9 and alcohol and substance abuse (Pet. Ex. 1 ¶¶ 15, 17, 20; Pet. Ex. 3 ¶¶ 2-3, 5, 13, 14, 18; Pet.
10 Ex. 4 ¶¶ 18, 28, 30; Pet. Ex. 5 ¶¶ 11, 16; Pet. Ex. 6 ¶ 8; Pet. Ex. 7 ¶¶ 6, 8; Pet. Ex. 8 ¶¶ 5, 9, 17;
11 Pet. Ex. 17 ¶ 4; Pet. Ex. 21 ¶ 8).
12 Petitioner argues further investigation and development of Petitioner’s social history as
13 such is reflected in his habeas proffer would have been mitigating and fostered residual doubt,
14 humanizing him and explaining his adverse life history, particularly his habitual drug use and
15 addiction. He argues this evidence would have overcome the aggravating value of his prior
16 criminal conduct by explaining how and why he came to commit such acts.
17 However, for the reasons discussed in the prejudice analysis below (see section VII, A,
18 2, c, ii, post), summarized here, Petitioner’s psychosocial history proffer is significantly
19 cumulative of the above noted defense investigation and information known to Schultz and
20 considered by him. The state supreme court reasonably could find such evidence essentially
21 cumulative of noted information discovered during the defense investigation including as
22 summarized by investigator King’s memorandum to Schultz and presumably considered by
23 Schultz. (See Pet. Ex. 23 at SH002040-49; see also Pet. Ex. 12 ¶ 13; Pet. Ex. 15 ¶¶ 2-5.)
24 The state supreme court reasonably could find Schultz was aware of Petitioner’s
25 difficult and dysfunctional upbringing and that Schultz was not unreasonable in determining
26 the mitigating value thereof did not outweigh the aggravating value of Petitioner’s prior
27 criminal acts. Particularly, the lay testimony proffer on habeas of family members who
28
34
1 thought well of Petitioner reasonably could present the same risk of rebuttal with evidence of
2 Petitioner’s prior criminal acts as the proposed testimony of his mother. (RT 5545.)
3 Schultz reasonably could have determined further investigation unwarranted as
4 presentation of such mitigating evidence risked opening the door to rebuttal evidence of his
5 prior criminal acts, for the reasons discussed above. See Frye v. Warden, San Quentin State
6 Prison, No. 2:99-CV-0628 KJM CKD, 2015 WL 300755, at *18 (E.D. Cal. Jan. 22, 2015) (“A
7 lawyer may make reasonable decisions that render particular investigations unnecessary.”).
8 For example, Schultz reasonably could have discounted the mitigating weight of mental state
9 evidence given the paucity of evidence in the record that Petitioner was suffering from mental
10 impairment or substance abuse at the time of the capital crimes.
11 Petitioner’s further argument regarding uninvestigated evidence relating to Petitioner’s
12 efforts at education, self-reform and religious conversion while in jail awaiting trial (Doc. No.
13 51-1, ¶ 530; Doc. No. 142 at 93) is not persuasive otherwise. The state supreme court
14 reasonably could find such uninvestigated social history evidence was largely cumulative of
15 information known to the defense (see Pet. Ex. 23 at SH002038-2137) and presented the same
16 risk of rebuttal with criminal history evidence.
17 Decision to Forego Further Mental History Investigation was Reasonable
18 The state supreme court reasonably could find Petitioner’s habeas proffered mental
19 state evidence was not a basis for further penalty defense investigation. (Doc. No. 51-1, ¶¶
20 435-442, 472-473, 532-568.)
21 Petitioner faults Schultz for failure to retain and utilize mental health experts in the
22 penalty defense including to “deconstruct” his prior criminal conduct. (Doc. No. 51-1 ¶¶ 473,
23 532-552.) Particularly, he argues his conduct with the corpse of a young girl was a single
24 impulsive act, not qualifying as necrophilia, and that an expert at the penalty phase could have
25 made that clear. (Pet. Ex. 2 at 224-26.) He argues such mental state evidence would have been
26 mitigating and fostered residual doubt: humanized him, explaining his adverse life history,
27 particularly his habitual drug use and addiction. He argues this evidence would have overcome
28
35
1 the aggravating value of Petitioner’s noted prior criminal conduct by explaining how and why
2 he came to commit such crimes.
3 Petitioner points to habeas proffered expert opinion explaining the “childhood traumas
4 Petitioner’s parents inflicted upon him; the horrifying conditions Petitioner was subjected to
5 growing up; his parents’ moral bankruptcy and the associated mental, emotional, and moral
6 damage it inflicted upon Petitioner; and the concomitant psychological injuries he sustained.”
7 (Doc. No. 142 at 15; see also RT 5454-85.)
8 As above, Petitioner suggests that Schultz’s allegedly deficient conduct was not
9 tactically motivated, but rather that he operated under a:
10
[T]otally stigmatized misunderstanding and profoundly debilitating lack of
11 knowledge and denial of the myriad ways in which [Petitioner’s] chronic,
torturous, sadistic and perverse childhood victimization not only contributed to
12 the multiple undiagnosed mental illnesses and serious organic brain damage that
deformed his character, but defined his abnormal and perverse sexual behavior.
13 With no understanding of the sexual torment within which Colin was embedded
as a child and adolescent, his trial counsel “rested” rather than allow any
14 “character” evidence at all to be presented.
15
16 (Id., citing Ex. 2, at 13; see also Doc. No. 142 at 123-24.)
17 However, as discussed in more detail in the section on prejudice below, (see section
18 VII, A, 2, c, ii, post), the state supreme court reasonably could find further mental state
19 investigation unwarranted. See Frye, 2015 WL 300755, at *18 (“A lawyer may make
20 reasonable decisions that render particular investigations unnecessary.”). That court would not
21 have been unreasonable in finding the noted conclusions of Drs. Hackett and Thompson
22 reasonably informed Schulz as to Petitioner’s then mental state such that further development
23 and pursuit of a mental health mitigation defense was unwarranted. (Doc. No. 135 at 32, 40,
24 45-48 ; see also Pet. Ex. 12 ¶ 13.)
25 Petitioner discounts the penalty phase value of Drs. Hackett and Thompson. He argues
26 these mental health experts were not retained to assist with mitigation or provide opinions in
27 mitigation. (Doc. No. 51-1 ¶ 541; see also Ex. 19 ¶¶ 3-5.) He argues they were not provided
28
36
1 with and did not consider Petitioner’s psychosocial history. (Id.)
2 Petitioner points to the habeas declaration Dr. Thompson that Schultz failed to provide
3 evaluation parameters and that investigators King and Temple failed to respond to his requests
4 for additional social and mental health history. (Doc. No. 51-1 ¶ 537; Pet. Ex. 19 ¶¶ 3-5; see
5 also Doc. No. 142 at 122); Caro v. Woodford, 280 F.3d 1247, 1254-55 (9th Cir. 2002) (duty to
6 provide penalty phase experts with pertinent information); Hendricks v. Calderon, 70 F.3d
7 1032, 1043 (9th Cir. 1995) (1981 trial) (“where counsel is on notice that his client may be
8 mentally impaired, counsel’s failure to investigate his client’s mental condition as a mitigating
9 factor in a penalty phase hearing, without a supporting strategic reason, constitutes deficient
10 performance.”). In this regard, Dr. Thompson avers this led him to give no thought to
11 specifically assessing mitigation or any mitigation factors. (Pet. Ex. 19 ¶ 5.)
12 Even so, Dr. Thompson does not state his review of the habeas proffer evidence caused
13 him to change the findings and opinions he reached at trial. (See Pet. Ex. 19 and attachment
14 “A” thereto.) Dr. Thompson stated that while he was not provided with any psychological or
15 physiological data pertaining to Petitioner, he did review “copious police reports” provided to
16 him by defense investigator King and considered limited life history information provided by
17 Petitioner including as to childhood and developmental issues. (Pet. Ex. 19 attachment “A” at
18 1.)
19 Notably, Petitioner’s habeas proffer does not show he was examined by a mental health
20 professional in relation to the molestation of his sister which occurred when Petitioner was 14
21 years old. (Pet. Ex. 23 at SH0000177.) To the extent Petitioner was examined in 1981 by Dr.
22 William Terry, a psychiatrist appointed by the state court during proceedings in Nevada on the
23 burglary charge involving necrophilia (Pet. Ex. 2 at 87-89), Dr. Terry found that Petitioner’s
24 previous history was “compatible with a diagnosis of attention deficit disorder with
25 hyperactivity and a continual depressive state which is often found in adolescents who
26 previously have met the criteria for being hyperactive[.]” (Pet. Ex. 2 at 89; Pet. Ex. 23
27 SH002284.) Dr. Hackett presumably reviewed Dr. Terry’s conclusions as part of his noted
28
37
1 examination of Petitioner. (See e.g., Pet. Ex. 23 at SH04453, 4457; see also Pet. Ex. 2 at 21.)
2 Furthermore, Petitioner apparently did not have mental health problems or receive
3 medication for such while imprisoned in Nevada. (Pet Ex. 23 at SH002105.) Upon his release
4 from prison, Petition held down two jobs at once, reasonably suggesting a level of functionality
5 consistent with the findings of the defense trial experts. (Id.)
6 Given the findings of the defense trial experts and the other information known to him
7 from the defense investigation, Schultz reasonably could have decided pursuit of mitigating
8 mental state defenses using these or other trial experts lacked tactical value. Especially so
9 given the risk that presentation of such mitigating evidence could open the door to rebuttal
10 evidence of his prior criminal acts.
11 Petitioner heavily relies upon his habeas experts Drs. Khazanov and Counter. But their
12 evaluations and opinions of organic and mental deficiencies rendered more than a decade after
13 trial can be discounted on that basis. See Boyde v. Brown, 404 F.3d 1159, 1168-69 (9th Cir.
14 2005), amended by 421 F.3d 1154 (9th Cir. 2005) (holding that if new mental health evidence,
15 obtained after the trial, were sufficient to establish a petitioner’s innocence, the petitioner could
16 “always provide a showing of factual innocence by hiring psychiatric experts who would reach
17 a favorable conclusion.”). Especially so, as Petitioner’s mother stated on habeas that she was
18 prepared to testify at the penalty phase that he “had no physical problems at birth . . . was a
19 healthy child while growing up and did not suffer any unusual diseases or medical problems.”
20 (Pet. Ex. 15 ¶ 7.)
21 Petitioner’s habeas proffer is only minimally probative of mitigating factors that he
22 may have acted under extreme mental or emotional disturbance, or was impaired by mental
23 disease or defect, for the reasons stated. The jury was instructed in these regards and
24 considered the prosecutor’s argument at closing which noted the absence of such evidence.
25 (Doc. No. 51-1, n.37, n.38, citing RT 5135-36.)
26 Additionally, this Court in its prior order denying guilt claims observed that Petitioner
27 was evaluated by a mental health professional in conjunction with his motion for new trial.
28
38
1 Counsel on that motion, Ms. Hart, retained psychiatrist Dr. Callahan to examine Petitioner with
2 a view toward evidence that might have been presented in mitigation at the penalty phase in
3 support of catchall sentencing factor “k” (regarding any extenuating and sympathetic
4 circumstances of defendant’s character or record). (RT 5463.)
5 Dr. Callahan found mitigating evidence in the form of Petitioner’s chaotic upbringing
6 by unstable, abusive parents who engaged in degenerate and criminal behavior. While Dr.
7 Callahan suggested Petitioner’s act of necrophilia demonstrated his “significant
8 psychopathology” (RT 5481), Dr. Callahan found no evidence Petitioner suffered from a
9 thought disorder or mental disease of defect. Dr. Callahan also found Petitioner not to show
10 remorse for the capital crime.
11 Mere Criticism of Trial Tactics
12 Petitioner argues in the alternative that psychosocial evidence could have been
13 presented without implicating Petitioner’s character and without opening the door to his prior
14 criminal acts. (Doc. No. 51-1 ¶¶ 467, 556-557, citing Ramirez, 50 Cal. 3d at 1191-93); see
15 also RT 5112-13.) However, as noted, his primary penalty defense was lingering doubt based
16 on guilt phase evidence that he did not aid and abet the capital crime; a defense Schultz could
17 have viewed as inconsistent with a mitigation defense based upon psychosocial evidence
18 explaining his participation in the crime.
19 Moreover, Schultz reasonably could have believed penalty phase experts and lay
20 witnesses suggested and identified in Petitioner’s habeas proffer would have presented the
21 same risk of rebuttal evidence of prior criminal act to the extent his psychosocial history was
22 relevant to Petitioner’s criminal history. (See e.g., Pet. Ex. 5 ¶¶ 5-6; Pet. Ex. 2 at Ex. H at 10-
23 12; Pet. Ex. 4 ¶ 29.)
24 Petitioner also faults Schultz for his decision not to enlist Petitioner’s assistance in
25 preparing his mother to testify. (Doc. No. 142 at 135.) He notes Ms. Walters surprise and
26 disappointment at Schultz’s decision not to present her testimony at the penalty phase, and her
27 statement that:
28
39
1
I would have been able to recount the circumstances of [Petitioner’s] upbringing
2 accurately and sympathetically without discussing his character. I made this
clear to Mr. Schultz.
3
4 (Pet. Ex. 15 ¶ 6,) Ms. Walter’s habeas declaration goes on to detail a homelife of poverty,
5 deprivation, physical, emotional and sexual abuse, violence, drug use, and neglect with
6 frequent displacement of Petitioner and his siblings. (See Id. ¶¶ 7; Petition, Ex. 1 ¶¶ 13, 15-
7 24.)
8 Still, Petitioner does not support this argument with facts suggesting how he might have
9 fostered and facilitated such testimony while avoiding the risk of rebuttal. The record reflects
10 Petitioner’s indifference to and hatred of his mother expressed during pre-trial defense
11 interviews. (Pet. Ex. 23 at SH002055, SH002136; SH004453.) Petitioner’s mother, while he
12 was incarcerated in Nevada, expressed her fear of him and desire that he not contact her or
13 know her whereabouts upon release. (Pet. Ex. 23 at SH003963.) Also, Petitioner was in the
14 courtroom during the in limine hearing when this issue of his criminal history was discussed
15 and presumably he could have assisted Schultz were he willing and able to do so. (See RT
16 5113.)
17 Generally, the mere criticism of trial tactics is insufficient to establish ineffectiveness or
18 prejudice. United States v. Ferreira-Alameda, 815 F.2d 1251, 1254 (9th Cir. 1986); see also
19 Dows v. Wood, 211 F.3d 480, 487 (9th Cir. 2000) (counsel’s tactical decisions are given great
20 deference and need only be objectively reasonable). The state supreme court reasonably could
21 find that to be the case here. As this Court previously observed in its guilt phase order:
22
23 [T]he state supreme court reasonably could have found that Schultz did
reasonably develop a social history and investigate mental defenses. The noted
24 record suggests Schultz reasonably relied upon his investigation and expert
consultations in deciding not to further develop and present mental state
25 defenses at the guilt phase. (See SHCP, Ex. B ¶ 5); see also Harris v. Vasquez,
949 F.2d 1497, 1525 (9th Cir. 1990) (“It is certainly within the ‘wide range of
26 professionally competent assistance’ for an attorney to rely on properly selected
experts.”); Williams v. Woodford, 384 F.3d 567, 611 (9th Cir. 2004) (holding
27 counsel’s decision not to investigate mental defense further was reasonable in
light of conclusions of mental health experts).
28
40
1 (Doc. No. 135 at 45.)
2 For the reasons stated, the state supreme court reasonably could find unpersuasive
3 Petitioner’s suggestion the defense did not investigate the root facts underlying Petitioner’s
4 personal history. (See Doc. No. 51-1 ¶ 445.) The decision to forego presentation of mitigation
5 evidence was both in furtherance of the noted primary penalty defense, and not inconsistent
6 with Petitioner’s stated desire to forego a mitigation defense. Ms. Hart, counsel for Petitioner
7 on the motion for new trial, conceded Schultz made a tactical decision not to present mitigating
8 evidence at the penalty phase. (RT 5454.) Ms. Hart conceded that a failure to present any
9 mitigating evidence is not ineffective assistance where the decision is “fully responsible and
10 informed[.]” (RT 5532.) The trial court agreed in denying the motion for new trial by finding
11 that Schultz acted tactically and that “there was [mitigating evidence] available to [Schultz]
12 and [Schultz] was well aware of that.” (RT January 17, 1992 at 25-26.) That court found that
13 Schultz it was not ineffective by failing to present mitigating evidence. (Id.)
14 Accordingly, the state supreme court reasonably could find the defense investigation to
15 be timely and sufficient to inform Schultz’s choice of penalty defense and tactical decision not
16 to present mitigating evidence during the penalty phase. See Correll v. Ryan, 539 F.3d 938,
17 947, citing Smith v. Stewart, 189 F.3d 1004, 1008-09 (9th Cir. 1999) (“The failure to present
18 mitigating evidence during the penalty phase of a capital case, where there are no tactical
19 considerations involved, constitutes deficient performance, since competent counsel would
20 have made an effective case for mitigation.”); Gerlaugh v. Stewart, 129 F.3d 1027, 1033 (9th
21 Cir. 1997) (“A reasonable tactical choice based on an adequate inquiry is immune from attack
22 under Strickland.”); Lang v. Cullen, 725 F.Supp.2d 925, 962 (C.D. Cal. 2010) (trial counsel’s
23 strategic choices must be respected if they are based on professional judgment following a
24 reasonable investigation); cf. Sanders, 21 F.3d at 1457 (an attorney “can hardly be said to have
25 made a strategic choice when s/he [sic] has not yet obtained the facts on which such a decision
26 could be made”). Petitioner has not rebutted Strickland’s presumption of reasonableness.
27 Richter, 562 U.S. at 104 (quoting Strickland, 466 U.S. at 687). His stated desire not to present
28
41
1 any mitigation evidence (RT 5101-02) credits the presumption.
2 ii. Prejudice
3 Petitioner argues a reasonable probability of a different sentencing outcome had the
4 jury been presented with the proffered humanizing psychosocial mitigating evidence. (Doc.
5 No. 51-1, ¶¶ 433-568.)
6 Particularly, he argues his criminal history evidence could have been mitigating if tied
7 to his noted personal history evidence. (Doc. No. 51-1 ¶¶ 445-446, 455, 466, 513; see also
8 Pet. Ex. 2 at 27-28, 208.) For example, he argues his sexual activity with the corpse of seven-
9 year-old Katherine Higgins had mitigating value to the extent it resulted from “his own history
10 of sexual victimization, exacerbated by drug and alcohol abuse[.]” (Id.) He argues that absent
11 Schultz’s noted deficiencies:
12
The jury would have discerned the symptoms of significant brain impairments
13 and other impairments, including PTSD, ADHD, severe physical and sexual
trauma, and alcohol and substance abuse. Had Schultz investigated and retained
14 experts, and thereafter provided them with adequate information, they would
have concluded that Petitioner’s history contained sufficient indicia of organic
15 brain damage to warrant complete and thorough neuropsychological testing for
various neurological and/or psychiatric disorders.
16
17 (Doc. No. 142 at 125.)
18 However, the California Supreme Court reasonably could find otherwise, as follows.
19 (1) Aggravating and Rebuttal Evidence
20 The prosecution presented aggravating evidence consisting Petitioner’s stipulation to
21 his 1983 second-degree felony burglary conviction, and five autopsy photographs of the capital
22 crime victims. (CT 291; RT 5127-31; Doc. No. 51-1, ¶¶ 460, 554); see also Dickey, 35 Cal.
23 4th at 894-900. The only penalty phase witness was police detective Stokes, who was called
24 by the prosecutor to provide foundation for the autopsy photographs. Dickey, 35 Cal. 4th at
25 894-900.
26 The jury had before it the circumstances of petitioner’s conviction for the capital crime
27 and special circumstances found true. (See Doc. No. 135 denying guilt phase claims.)
28
42
1 Furthermore, the noted facts underlying Petitioner’s prior criminal acts were available
2 in rebuttal of any character defense at the penalty trial.
3 (2) Totality of Evidence in Mitigation
4 The defense did not present evidence in mitigation at the penalty phase. Petitioner
5 points to his habeas proffer, discussed below, as suggesting:
6
[T]he extraordinary, horrific stressors to which [he] was exposed; the migratory
7 factors, poverty, violence, sexual perfidy and victimization that characterized
his life; the failure of doctors to properly diagnose him, of police to protect him,
8 of social workers to provide him safe haven, of family law and juvenile courts
to make decisions based on a realistic totality of factors, of probation officers to
9 understand and monitor his living conditions, or of prison authorities to provide
psychotherapy, rehabilitation or other transition services.
10
11 (Doc. No. 51-1 at ¶ 477; see also Pet. Ex. 2 at 25.)
12 Predisposition to Mental Illness
13 Petitioner points to evidence of a family history of mental illness, criminal and violent
14 conduct and substance and sexual abuse. (Doc. No. 51-1 ¶¶ 447-448; Pet. Ex. 1 ¶ 11; Pet. Ex.
15 2 at 7, 39-41; Pet. Ex. 3 ¶¶ 19-21; Pet. Ex. 23 at SH001685, SH003450-53.) He observes
16 “schizophrenia, bipolar and suicidal depressive disorders, delusions” and “nervous
17 breakdowns” on his mother’s side. (Pet. Ex. 3 ¶ 21.)
18 Petitioner points to evidence that his great aunt was delusional, schizophrenic and
19 bipolar, and spent time in a mental institution. (Doc. No. 51-1, ¶ 485, citing Pet. Ex. 3 ¶¶ 1,
20 19-20.) Another aunt suffered paranoid schizophrenia. (Doc. No. 51-1 ¶ 488.) His
21 grandmother was institutionalized following a “nervous breakdown”, and another extended
22 relative once contemplated suicide. (Doc. No. 51-1 ¶ 486, citing Pet. Ex. 3 ¶¶ 1, 19-20.)
23 Petitioner alleges his father suffered unspecified mental disorders and obsessions and was
24 sadistic. (Id.; Pet. Ex. 6 ¶¶ 4-10.)
25 Physical and Sexual Abuse
26 Petitioner points to evidence of multigenerational physical and sexual abuse. (Doc. No.
27 51-1 ¶¶ 501-508; Pet. Ex. 23 at SH001636-84, SH001713-16.) He observes cruel and sexual
28
43
1 abuse by his father, Donald Dickey. (Id., citing Boyde, 404 F.3d at 1176) (trial counsel’s
2 failure in death case to present evidence of physical abuse and family history of sexual abuse
3 requires evidentiary hearing).) He observes evidence of multigenerational forcible rape and
4 incest including by his father whom he describes as a sexual predator. (See Pet. Ex. 1 ¶¶ 4-7;
5 Pet. Ex. 2 at 10-13, 21-23, 37, 40, 49, 58; Pet. Ex. 3 ¶ 12; Pet. Ex. 5 ¶¶ 5-6; Pet. Ex. 6 ¶¶ 4-5;
6 Pet. Ex. 7 ¶¶ 7, 14; Pet. Ex. 8 ¶¶ 6-7.) He points to evidence his father sexually molested and
7 assaulted relatives and his own daughter. (Pet. Ex. 2 at 49; Pet. Ex. 4 ¶ 5; Pet. Ex. 5 ¶¶ 5-6;
8 Pet. Ex. 15 at 91; Pet. Ex. 23 at SH000747-49, SH04459-61.) He notes his father’s 1979
9 conviction of molesting his daughter Melissa. (Pet. Ex. 23 at SH002709.) He points to
10 evidence his father enlisted him and his brothers in the molestation of his sister Melissa. (See
11 Pet. Ex. 5 ¶ 5.)
12 He points to evidence he and his cousins and possibly others became sexually active
13 with each other during their youth. (Pet. Ex. 2 at 22-24, 49, 56-60.)
14 He points to evidence his father and mother physically abused each other as well as
15 Petitioner and his siblings. (See Pet. Ex. 1 ¶ 4; Pet. Ex. 2 at 10-11, 22-26, 46-49, 59, 91, 98;
16 Pet. Ex. 4 ¶¶ 8, 10, 19; Pet. Ex. 5 ¶¶ 5-6; Pet. Ex. 7 ¶¶ 8-9, 19; Pet. Ex. 8 ¶ 4; Pet. Ex. 15 ¶ 7;
17 Pet. Ex. 17 ¶¶ 5-7.)
18 He points to evidence his mother had sex with another man in front of her children
19 including Petitioner. (Pet. Ex. 15 ¶ 7.)
20 He points to his own act of necrophilia at age seventeen which included sexual contact
21 with the corpse of a seven-year-old girl he took from a Reno, Nevada mortuary, for which he
22 received an adult conviction of second-degree burglary. (Pet. Ex. 2, at 26-27.)
23 Poverty and Neglect
24 Petitioner, born in 1964 in Tulare County, California, is one of four children of Linda
25 and Donald Dickey. (Pet. Ex. 23 at SH002709.) His parents divorced in 1979. (Id.)
26 Petitioner points his Dust Bowl heritage and history of multigenerational poverty.
27 (Pet. Ex. 2 at 23; id. at SH003282.)
28
44
1 Petitioner points to evidence that as a child he and his siblings experienced extreme
2 poverty and neglect. (Pet. Ex. 2 at 6-7, 17-18, 29-38; Pet. Ex. 4 ¶¶ 14-16; Pet. Ex. 5 ¶¶ 14-16;
3 Pet. Ex. 15 ¶ 7; Pet. Ex. 16 ¶ 2; Pet. Ex. 17 ¶ 10; Pet. Ex. 18 ¶ 3.) He and his siblings went to
4 grade school in tattered clothes, dirty and covered in bruises; the school provided food and
5 clothes to him and his family. (Doc. No. 51-1, ¶ 478, citing Pet. Ex. 16 ¶ 2.)
6 Petitioner and his siblings were teased about such things and viewed as the trash of the
7 town (id., ¶ 479, citing Pet. Ex. 17 ¶ 10), and as outsiders (id., ¶ 480, citing Pet. Ex. 18 ¶ 3).
8 His family was socially isolated, disliked, and deprived. (Id., ¶ 481-82, citing Pet. Ex. 4 ¶¶ 14-
9 16; Pet. Ex. 5 ¶¶ 14-16; Pet. Ex. 2 at 141.)
10 In 1971, Petitioner and his siblings were subject of a petition for juvenile dependency
11 due to parental neglect. (Pet. Ex. 23 at SH000002-10.) This even though it was noted therein
12 the children did not appear malnourished, neglected or abused. (Id.) Petitioner suggests
13 conditions for him did not improve during times he was in institutional care as a youth and
14 adolescent. (Doc. No. 51-1, ¶ 477.)
15 Petitioner points to his parents’ 1979 divorce as evidence of parental dysfunction and
16 disinterest, as a result of which he was placed in the custody of his paternal grandparents. (Pet.
17 Ex. 23 at SH001283.)
18 Criminal Activity and Domestic Violence
19 Petitioner points to his family’s criminal history including his father’s repeated arrests
20 and absences from the home while in jail. (Pet. Ex. 2 at 8, 25, 34; Pet. Ex. 15 ¶ 7; Pet. Ex. 23
21 at SH003423-26.)
22 Petitioner points to evidence of multigenerational domestic violence. (Doc. No. 51-1 ¶
23 498; see also Pet. Ex. 3 ¶ 2.) He points to the noted violence within his family and that his
24 father beat his mother in front of Petitioner and his siblings and demanded she have sex with
25 other men while he watched (Pet. Ex. 23 at SH001260); and that his mother beat him and his
26 siblings. (Doc. No. 51-1 ¶ 500; see also Pet. Ex. 1 ¶¶ 18-22.)
27 Substance Abuse
28
45
1 Petitioner points to evidence of multigenerational alcohol abuse. (Pet. Ex. 2 at 30, 33.)
2 He points to evidence of alcoholism and drug abuse within his immediate family. (Doc. No.
3 51-1, ¶ 490; Pet. Ex. 2 at 8, 13; see also Pet. Ex. 3 ¶¶ 3, 5, 13, 18.) He points to his
4 predisposition for these conditions. (Doc. No. 51-1, ¶ 550, citing Pet. Ex. 2 at 152-53).
5 Particularly, he observes his father and mother used drugs and drank alcohol (Doc. No.
6 51-1, ¶¶ 491, 496, citing Pet. Ex. 3 ¶¶ 13-14); Pet. Ex. 4 ¶ 18; Pet. Ex. 8 ¶ 9) and that his
7 mother and aunt were drug dealers (Doc. No. 51-1, ¶¶ 492-93; Pet. Ex. 1 ¶¶ 13, 15, 17; Pet.
8 Ex. 2 at 24, 55; Pet. Ex. 4 ¶ 18.).
9 Petitioner suggests his predisposition to substance addiction manifested during his
10 youth and that he continued substance abuse to the time of the capital crime. (Doc. No. 51-1
11 ¶¶ 549-551; see also Pet. Ex. 2 at 152-53.) He points to evidence he and his siblings used
12 drugs and alcohol while growing up. (Doc. No. 51-1, ¶¶ 496-97, citing Pet. Ex. 5 ¶¶ 11, 16;
13 see also Pet. Ex. 2 at 78-79; Pet. Ex. 8 ¶¶ 9, 17.) Particularly, he points to his use of alcohol
14 and marijuana at age 14, progressing to use of LSD by age 16 and cocaine by age 22. (Doc.
15 No. 51-1, ¶¶ 524-526; see also Pet. Ex. 2 at 33, 47-48; People v. Lanphear II, 36 Cal. 3d 163,
16 168-169 (1984) (alcohol and drug use constitute mitigating evidence). He suggests such
17 substance abuse exacerbated his alleged brain and mental impairments. (Doc. No. 51-1 ¶¶
18 524-529; Pet. Ex. 2 at 29.)
19 Organic Brain and Mental Impairments
20 Petitioner argues his habeas mental health experts found evidence of frontal and left
21 lobe damage to his brain as well as mental impairments affecting his overall cognitive and
22 neurological functioning. (Doc. No. 51-1 ¶ 450.) Noting his adverse childhood experiences
23 and psychosocial stressors (see Pet. Ex. 2 at 181-87), he claims attention deficit and
24 hyperactivity disorder (“ADHD”) and a complicated and severe form of Post-Traumatic Stress
25 Disorder (“PTSD”). (Id.)
26 Petitioner supports the argument by pointing to evidence of depression, severe physical
27 and sexual trauma, alcohol and substance abuse, and nervous tic disorders developed during
28
46
1 childhood. (Doc. No. 51-1 ¶¶ 542-547; Pet. Ex. 2 at 27-30, 45, 50-51, 152-53; see id., Ex. H at
2 3-25; Pet. Ex. 19 ¶¶ 450, 509-516; Doc. No. 142 at 33, citing Pet. Ex. 4 ¶ 11.) He contends his
3 mother described him as a “disruptive and rebellious youngster that was causing control
4 problems both in the home and school setting.” (Pet. Ex. 23 at SH002333.) He points to
5 evidence that he struggled academically in high school, but graduated in 1983 placing 182 out
6 of 291 students, with an ending high school GPA of 2.37. (Pet. Ex. 23 at SH002270,
7 SH002344.)
8 Petitioner observes the findings of his noted habeas experts, neuropsychologist Dr.
9 Natasha Khazanov who evaluated him in 2005, and psychologist Dr. Barbara Counter who
10 evaluated him in 2007.
11 Dr. Khazanov measured Petitioner’s full-scale IQ at 109, but with some impairment in
12 memory, concentration and reading. (Pet. Ex. 2 at Ex. H at 4-6.)
13 Dr. Khazanov found that Petitioner demonstrated multiple indicia of brain damage and
14 impairment particularly in the frontal lobe suggesting impulse control and aggression issues.
15 (Doc. No. 142 at 106; see also Pet. Ex. 2 at 19-20, 31, 220-21; Pet. Ex. 2 at Ex. H at 7, 23-25.)
16 Dr. Khazanov opined that Petitioner suffered serious organic brain damage and underlying
17 mental impairments that left him unable to respond rationally to situations facing him,
18 especially so when combined with substance abuse. (Pet. Ex. 2 at Ex. H at 23.)
19 Particularly, Dr. Khazanov reported:
20
[P]ossible cognitive, psychiatric and behavioral deficits which could
21 significantly affect [Petitioner’s] capacity to accurately perceive, store, retain,
and relate critical information. The deficits suggested in these records
22 (primarily affecting the frontal lobes), especially in combination with other
conditions or impairments, would most likely render [Petitioner] severely
23 impaired in many areas of functioning.
24
25 (Pet. Ex. 2 at Ex. H at 2.)
26 Dr. Khazanov opined that at the time of the capital crime, Petitioner suffered “from the
27 cumulative effects of longstanding brain damage, childhood trauma, depression, chronic
28
47
1 substance abuse and dependence and post traumatic stress disorder. (Id. at 24.) She opined
2 that a competent neuropsychologist could have and should have presented such evidence as
3 part of the mitigating factors identified in [Penal Code section] 190.3.” (Id. at 25.)
4 Dr. Khazanov averred that decompensation from organic brain damage and mental
5 illnesses “contributed directly to [Petitioner’s] incompetency to proceed at the penalty phase of
6 the trial [and that Petitioner] was unable to assist his counsel in a rational manner in the
7 presentation and defense of the penalty phase of the trial” (id.), including as to the breakdown
8 in communication with Schultz and the waiver the presence in the courtroom (id.).
9 Finally, Dr. Khazanov faulted defense trial experts Drs. Hackett and Thompson for
10 failing to address the possibility of neuropsychological deficits despite the presence of risk
11 factors and motor tic symptoms noted in the habeas psychosocial history proffer. (Pet. Ex. 2 at
12 Ex. H at 9-12.) She discounted their opinions as uninformed by accurate data of Petitioner’s
13 emotional, cognitive and behavioral limitations, which she suggests implicates the possibility
14 of organic brain damage. (Id. at 10.)
15 Dr. Counter prepared a psychosocial history based upon her 2007 examination of
16 Petitioner. (Pet. Ex. 2.) Therein, Dr. Counter detailed Petitioner’s near life-long symptoms of
17 organic brain damage and dysfunction noted by Dr. Khazanov. (Doc. No. 51-1 ¶ 514; Pet. Ex.
18 2 at 26.) These symptoms included Petitioner’s obvious motor tic disorder which presented as
19 nervous facial twitches, rapid blinking, sniffing, repeated lip licking, snorting and “Ah”
20 sounds, as well as other odd, self-stimulatory behaviors, and possibly related adolescent
21 ADHD (Pet. Ex. 2 at 5, 9, 27-32) and PTSD (id., at 208). Relatedly, Dr. Counter noted
22 evidence that during his teens, Petitioner was described as anxious and jittery, moving
23 continuously. (Id., at 31; see also Pet. Ex. 2 at 211-14.) The record includes habeas
24 declarations from family members and acquaintances who observed Petitioner’s nervous tic.
25 (See Pet. Ex. 4 ¶ 11; Pet. Ex. 8 ¶ 12; Pet. Ex. 16 ¶ 5.)
26 Dr. Counter included in her social history the above opinions of Dr. Khazanov. (Pet.
27 Ex. 2 and Ex. H thereto.)
28
48
1 Dr. Counter also included reference to Petitioner’s 1981 examination by court
2 appointed psychiatrist, Dr. William Terry, during proceedings in Nevada on the burglary
3 charge. (Pet. Ex. 2 at 87-89.) Dr. Terry felt Petitioner was in need of some kind of psychiatric
4 attention. (Pet. Ex. 23 at SH000191.) Dr. Terry concluded that Petitioner’s previous history
5 was “compatible with a diagnosis of attention deficit disorder with hyperactivity and a
6 continual depressive state which is often found in adolescents who previously have met the
7 criteria for being hyperactive[.]” (Pet. Ex. 2 at 89; Pet. Ex. 23 SH002284.)
8 Criminal and Institutional History
9 Petitioner suggests mitigation value from noted evidence of: (i) his juvenile
10 adjudication relating to the multi-year molestation of his younger sister, (Pet. Ex. 23 at
11 SH000013-85), and (ii) his adult conviction for theft and sexual abuse of the corpse of a seven-
12 year-old girl (Pet. Ex. 23 SH000086-00543). (See Doc. No. 51-1 ¶¶ 443-444.)
13 Incarceration and Attempts to Reform
14 Petitioner argues mitigating aspects of his incarceration in Nevada and California
15 pending the capital trial. As to the former, he points to evidence of the harsh effects of
16 imprisonment. (Pet. Ex. 2 at 172-79.) As to the latter, he points to evidence of his
17 detoxification from cocaine and religious conversion while in jail awaiting trial, including
18 work with a pastor at the jail. (Doc. No. 51-1 ¶ 530; see also Pet. Ex. 2 at 5, 23, 34.)
19 (3) Petitioner Has Not Shown Prejudice
20 Petitioner argues prejudice from Schultz’s alleged deficiencies because the jury would
21 have seen from his unpresented proffered evidence the mitigating effects of his extreme mental
22 or emotional disturbance and impairment by mental disease, defect and intoxication. (See Doc.
23 No. 142 at 125-26, citing Penal Code section 190.2(d), (h), (k); see also RT 5135-36; Pet. Ex. 2
24 at 19.) He argues that jury would have seen that he was depressed and had thoughts of hurting
25 himself on the day of his act of necrophilia. (See Pet. Ex. 2 at 28.)
26 Petitioner supports these arguments by pointing out that even without presentation of
27 mitigating evidence, the jury found the sentencing determination to be a close call. The jury
28
49
1 deliberated five hours over two days during the course of which they submitted questions to the
2 trial court and had testimony re-read. (CT 477-480.) He suggests this shows and that “at least
3 one juror would have struck a different balance between life and death” had the mitigating
4 proffer evidence been presented. (Doc. No. 142 at 131, citing Wiggins, 539 U.S. at 537.)
5 However, the state supreme court reasonably could find the totality of the mitigation
6 evidence to be insubstantial and outweighed by the aggravating and rebuttal evidence in the
7 record, such that there does not remain a reasonable probability of a different outcome. (Doc.
8 No. 142 at 131, citing Porter, 558 U.S. at 44 (quoting Strickland, 466 U.S. at 693–94); see also
9 Apelt, 878 F.3d at 815-16 (denying habeas relief even though trial counsel failed to uncover
10 mitigating evidence that the defendant grew up very poor, had an alcoholic and violent father
11 who beat his children with an iron rod, was raped twice as a child, and suffered from mental
12 illness); Cain v. Chappell, 870 F.3d 1003, 1021 (9th Cir. 2017) (denying habeas relief despite
13 new mitigating evidence that the defendant was severely beaten and punished by his
14 stepmother, had an untreated childhood head injury, and had learning disabilities).
15 Only when “the likelihood of a different result [is] substantial, not just conceivable,”
16 has the petitioner met Strickland’s demand that defense errors were “so serious as to deprive
17 [him] of a fair trial.” Id. at 104 (quoting Strickland, 466 U.S. at 687). The state supreme court
18 reasonably could find Petitioner did not carry this burden, as follows.
19 Aggravating and Rebuttal Evidence was Substantial
20 The circumstances surrounding Petitioner’s participation the capital crimes, that he
21 aided and abetted the killings with an intent to kill, suggest substantial aggravating weight.
22 (See Doc. No. 135.) As this Court previously observed:
23
Buchanan testified that on the night of the murders he overheard RC and
24 petitioner whispering about going to get money from some place, a task for
which they armed themselves even though the victims were old and infirmed.
25 (RT 4138-42, 4239-42, 4662-63, 4733.) At that time neither RC nor petitioner
had any money. (RT 4348-52.) Goldman and Buchanan observed RC and
26 petitioner preparing for the crimes. Goldman (RT 4534) and Buchanan (RT
4663-65) saw petitioner take the venetian blind from the closet to the bedroom
27 where RC was waiting (RT 4534, 4663-65); petitioner returned the blind to the
closet after the cord was removed. (RT 4534-37, 4666.) Petitioner’s fingerprint
28
50
was found on the blind from which cord used in the crimes was removed. (RT
1 4573.)
2 Buchanan saw a knife on the bed in the bedroom just before RC and petitioner
left the apartment. (RT 4706-07.) Buchanan saw RC and petitioner leave the
3 apartment together that night. (RT 4674-75.) Goldman identified a knife at the
murder scene as identical to one in the apartment kitchen; (RT 4396-97); she
4 had seen petitioner looking through the kitchen drawer where the knife was
kept. (RT 4343-44.) Both Buchanan and Goldman testified that petitioner and
5 RC returned to the apartment together about two hours later (RT 4337-49, 4662-
76), with $700 they did not have earlier that evening (RT 4361, 4675-76), and
6 spent some of this money on drugs. (RT 4348, 4352, 4675-77.) Buchanan
testified that while driving RC to the Easy 8 Motel hours after the crimes,
7 petitioner disposed of clothing, apparently evidence from the murders. (RT
4684-85.)
8
Furthermore, Buchanan (RT 4980) and Goldman (RT 4357-62) testified to
9 petitioner’s admission that he participated in the crimes with RC.
10 […]
11
A reasonable juror could have concluded weapons were unnecessary in the
12 absence of intent to kill. Victim Caton was in her seventies; victim Freiri was
partially paralyzed, wore a leg brace and used a cane to get around. (RT 4138-
13 42, 4239-42.) Both victims presumably knew the perpetrators and could have
identified them to the authorities. During the crimes, RC assaulted Mr. Freiri
14 leaving him apparently dead (RT 4691) and then “went berserk” and assaulted
Ms. Caton. (RT 4360-61.)
15
The evidentiary record otherwise could reasonably support a plan to kill the
16 victims. The murders appear callous and brutal and were committed with the
cord and knife brought to the crime scene by petitioner and RC. (See e.g.,
17 SSHCP, Ex.’s 9-11.) The lack of proximity between the victims could
reasonably suggest some significant amount of time and cooperation between
18 perpetrators was involved. There is no suggestion in the record that petitioner
tried to intervene in the assaults or aid the victims; for example Goldman
19 testified that petitioner did nothing as RC assaulted his grandmother. (RT 4359-
61.)
20
Additionally, the record suggests that RC may have been in contact with
21 petitioner after RC left the Harvard Avenue apartment following the crimes;
possibly suggesting the two were involved in the murders. (RT 4841-43.) After
22 the crimes, petitioner was initially emotional and depressed about his confessed
involvement, but petitioner’s mood improved when he learned all of the victims
23 and RC were dead. (RT 4378.) Even so, petitioner apparently threatened
Goldman should she reveal his admitted role in the crimes. (RT 4375-77, 4616.)
24
25 (Doc. No. 135 at 197-99 [regarding guilt claim XXVI].)
26 The noted character rebuttal evidence that Petitioner molested his younger sister over a
27 period of years and engaged in sexual activity with the corpse of a young girl reasonably
28
51
1 suggests substantial aggravating weight, as Petitioner and Schultz both recognized. (See Pet.
2 Ex. 12 ¶ 13; Pet. Ex. 23 at SH002091-94.) Moreover, the habeas proffer includes evidence
3 Petitioner threatened his little sister Melissa, whom he molested for a number of years, with
4 violence if she refused intercourse with him. (Pet. Ex. 2 at 65.)
5 Total Mitigating Evidence was Insubstantial
6 Schultz argued lingering doubt to the penalty phase jury based on guilt phase defenses
7 raised and rejected. (See Doc. No. 135.) The state supreme court reasonably could find
8 minimal mitigating value in the lingering doubt defense.
9 The social history proffer provides context to Petitioner’s difficult circumstances at the
10 time of the crime, but these circumstances were largely known to the jury. The jury heard
11 evidence that Petitioner was unemployed and lacked funds and regularly used drugs around the
12 time of the capital crime. Petitioner testified at the guilt phase to his use of cocaine during the
13 summer of 1988. (RT 4901-07; see also Pet. Ex. 2 at 29.) The jury was also aware of
14 testimony that no one in the Harvard Avenue apartment had money to buy drugs at the time of
15 the crime; that the crime was committed to get money to buy drugs. (See RT 4675-76; CT 19-
16 24; see also RT February 21, 1992 at 19-20; see Doc. No. 135 at 90; RT 4875.)
17 The social history proffer also is equivocal. Noted evidence of Petitioner’s abused and
18 dysfunctional upbringing appears countered by his mother’s proposed testimony that he “had
19 no physical problems at birth . . . was a healthy child while growing up and did not suffer any
20 unusual diseases or medical problems.” (Pet. Ex. 15 ¶ 7.) Petitioner’s claimed efforts are
21 reform appear diminished by evidence he showed no remorse for the capital crimes. (See e.g.,
22 RT 5488.)
23 The mental state proffer appears subject to discount and lacks mitigating weight. This
24 Court, in its order denying guilt phase claims, observed that:
25
In 2005, defense habeas expert, clinical psychologist Dr. Natasha Khazanov
26 examined petitioner over two days looking for brain damage and cognitive
impairment. (SSHCP, Ex. 2 at 265.) Dr. Khazanov determined that petitioner
27 had an IQ in the average range and exhibited multiple indicia of serious organic
brain damage and impairment exacerbated by substance abuse disorder,
28
52
affecting his ability to plan and rationally respond to his environment and
1 function in everyday life (id. at 287-89). Dr. Khazanov suggests the damage to
petitioner’s brain was present at the time of his trial as was the need for a
2 neurological assessment. (Id.) She suggests the neurological evidence would
have been mitigating at petitioner’s penalty phase. (Id.)
3
Dr. Khazanov faults trial experts, Drs. Hackett and Thompson for not
4 addressing the possibility of neuropsychological defenses including frontal lobe
deficits. (Id. at 273-74.) Especially so given then existing multiple risk factors
5 of brain damage including childhood trauma and post-traumatic stress disorder
(“PTSD”), hyperactivity and probable attention deficient and hyperactivity
6 disorder (“ADHD”), chronic motor tic disorder, a predisposition to
polysubstance abuse, depression, and related clinical symptoms in petitioner’s
7 social history. (Id. at 265-89.) She stated that these mental conditions impaired
petitioner’s ability to perceive, plan and make decisions and control impulses.
8 (Id.)
9
In 2007, defense habeas expert, Dr. Barbara Counter, a clinical and forensic
10 psychologist, reviewed petitioner’s social history documents and interviewed
him in prison for about 8 hours. She provided habeas counsel with a
11 psychosocial history that found indicia of childhood ADHD, chronic motor tic
disorder, depression, and post-traumatic stress disorder. (See SSHCP, Ex. 2 at
12 27-28.) Dr. Counter’s report chronicles petitioner’s family history of mental
illness, abuse (drug, alcohol, physical and sexual), domestic violence and crime.
13 (Id. at 14-20.) She notes petitioner’s prior felony conviction in Nevada
involving apparent necrophilia during the course of which petitioner received a
14 psychiatric evaluation by Dr. William Terry, who found petitioner’s history to
be compatible with a diagnosis of ADHD and depression (id. at 23-24, 94-98)
15 and recommended psychiatric treatment of petitioner’s difficulties relating to
other people.
16
However, the state supreme court reasonably could have found the habeas
17 proffer insufficient to suggest Schultz was prejudicially deficient in
investigating and presenting social and mental state history and defense
18 information. The record could reasonably suggest that petitioner then functioned
at a level inconsistent with a significant mental state deficit or impairment.
19 Petitioner graduated from high school in June of 1983 (id. at 102),
approximately 5 years prior to the instant crimes. Later, while incarcerated in
20 Nevada for the noted prior felony, he received certificates for education courses
taken while in prison. (Id. at 108.) Several months before the instant crimes, he
21 graduated from truck driving school at the top of his class. (Id. at 110.)
Petitioner worked as a roofer and at an auto parts store just prior to his arrest for
22 the instant crimes. (Id. at 112.)
23 Notably, the habeas experts examined petitioner 17 or more years after the
instant crimes. The state supreme court reasonably could have found the habeas
24 experts’ conclusions as to petitioner’s mental state at the time of the crime to be
speculative. Especially so given the contrary conclusions reached by experts
25 examining petitioner more proximal to his trial. In this regard, the state supreme
court presumptively considered a 1992 examination of petitioner by prison
26 psychologist M. Lyons, who found “no signs or symptoms of psychosis,
organicity or serious psychological impairment in social functioning.” (Id. at
27 135.) Around that time petitioner also was examined by prison psychiatrist Dr.
John Geiger, who also found “no mental disorder ... or condition of functioning
28
53
which would indicate additional psychiatric concern.” (Id. at 136.)
1
Petitioner does not demonstrate that any of the defense mental health
2 professionals who evaluated petitioner prior to trial requested or required then
existing information that was not provided to them by the defense team.
3 Furthermore, the state supreme court reasonably could have rejected petitioner’s
argument that Schultz was or should have been on notice of the need to further
4 investigate petitioner’s mental state defenses. Petitioner bases this argument on
his habeas experts’ suggestion that the need for such further investigation would
5 have been evident to mental health professionals at the time of trial. But
disagreement among experts is not alone a basis to find Schultz deficient. See
6 e.g., Toler v. Troutt, 2015 WL 1408490, at *9 (W.D. Okla., Feb. 20, 2015)
(medical difference of opinion not actionable under the Eighth Amendment).
7
Additionally, the state supreme court could reasonably have found that the
8 primary defense theory, that petitioner was not present during or involved in the
crimes, would not have been advanced by further investigation and
9 consideration of matters relating to petitioner’s social and mental history. (See
claim XXVI, XXVIII.) Petitioner has not otherwise shown facts and
10 circumstances surrounding the crimes reasonably placed Schultz on notice of
any need for further social history and mental state defense investigation.
11
Accordingly, a fair-minded jurist could have found that petitioner failed to
12 overcome the strong presumption that Schultz made decisions relating to
investigation and presentation of petitioner’s social history and mental state in
13 the exercise of professional judgment. Strickland, 466 U.S. at 690; see also
United States v. Farr, 297 F.3d 651, 658 (7th Cir. 2002) (counsel “is not
14 obligated to ... personally investigate every conceivable lead”); Morris v. State
of California, 966 F.2d 448, 456 (9th Cir. 1991) (a defendant seeking to prove
15 ineffective assistance of counsel “must overcome the presumption that, under
the circumstances, the challenged action might be considered sound trial
16 strategy). “The mere criticism of trial tactics is insufficient to establish
ineffectiveness or prejudice.” Ferreira-Alameda, 815 F.2d at 1254. Here,
17 counsel’s noted primary defense theory could be seen as reasonably furthered
by the guilt phase investigation and presentation.
18 (Doc. No. 135 at 47-48.)
19 (Doc. No. 135 at 46-48; see also Pet. Ex 2 at 19-27, 77-79, 201-02.)
20 Petitioner, in arguing the penalty phase claims has not demonstrated otherwise. See
21 Boyde, 404 F.3d at 1168-69 (holding that if new mental health evidence, obtained after the
22 trial, were sufficient to establish a petitioner’s innocence, the petitioner could “always provide
23 a showing of factual innocence by hiring psychiatric experts who would reach a favorable
24 conclusion.”).
25 Defense expert evaluation of Petitioner at the time of the new trial motion is in material
26 part consistent with the opinions of the defense trial experts (see e.g., Doc. No. 135 at 45) and
27 Petitioner’s demeanor at trial. Counsel on the motion for new trial, Ms. Hart, retained
28
54
1 psychiatrist Dr. Callahan to examine Petitioner with a view toward evidence that might have
2 been presented in mitigation at the penalty phase in support of sentencing factor “k”. (RT
3 5463.)
4 Dr. Callahan examined Petitioner during the summer of 1991, several months after the
5 jury’s death verdict. (RT 5461.) Dr. Callahan found mitigating evidence in the form of
6 Petitioner’s chaotic upbringing by unstable, abusive parents who engaged in degenerate and
7 criminal behavior (RT 5471); a home life where Petitioner was surrounded by and engaged in
8 sexual psychopathy (RT 5475-78); and Petitioner’s history of alcohol and substance abuse (RT
9 5478). Dr. Callahan found Petitioner’s act of necrophilia demonstrative of “significant
10 psychopathology.” (RT 5481.)
11 Even so, Dr. Callahan found no evidence Petitioner suffered from a thought disorder.
12 (RT 5486.) He found no mental disease of defect other than Petitioner’s sexual
13 preoccupations. (Id.) He found Petitioner with only a passive inadequate personality. (RT
14 5483.) He found Petitioner not to show remorse for the capital crime, but rather to deny
15 involvement in the crime. (RT 5488.)
16 The state supreme court reasonably could discount the habeas proffered evidence that
17 Petitioner was mentally impaired or altered by substance abuse at the time of the crimes.
18 Petitioner has not pointed to evidence of such in the trial record. See Martinez v. Ryan, 926 F.
19 3d 1215, 1234 (9th Cir. 2019) (“a sentencing court may not treat mitigating evidence of a
20 defendant's background or character as irrelevant or non-mitigating as a matter of law just
21 because it lacks a causal connection to the crime [citations]. The sentencer may, however,
22 consider causal nexus ... as a factor in determining the weight or significance of mitigating
23 evidence.”); see also Hedlund v. Ryan, 854 F.3d 557, 587 n.23 (9th Cir. 2017) (stating that,
24 under Eddings, “a court is free to assign less weight to mitigating factors that did not influence
25 a defendant’s conduct at the time of the crime”).
26 It follows that the state supreme court reasonably could find Petitioner’s proffer to be
27 only minimally probative of mitigating circumstances that he may have acted under extreme
28
55
1 mental or emotional disturbance, or was impaired by mental disease or defect, or presents a
2 sympathetic character. The jury was instructed in these regards and considered the
3 prosecutor’s argument at closing which noted the absence of such evidence. (Doc. No. 51-1,
4 n.37, n.38, citing RT 5135-36.)
5 The California Supreme Court has acknowledged Supreme Court authority that the
6 “high requirement of reliability” required in capital sentencing “is attained when the
7 prosecution has discharged its burden of proof at the guilt and penalty phases pursuant to the
8 rules of evidence and within the guidelines of a constitutional death penalty statute, the death
9 verdict has been returned under proper instructions and procedures, and the trier of the penalty
10 has duly considered the relevant mitigating evidence, if any, which the defendant has chosen to
11 present. A judgment of death entered in conformity with these rigorous standards does not
12 violate the Eighth Amendment reliability requirements.” People v. Bloom, 48 Cal. 3d 1194,
13 1228 (1989).
14 Accordingly, the state supreme court reasonably could find the aggravating
15 circumstances of the capital crime and special circumstances found true and the noted rebuttal
16 evidence substantially outweigh the totality of the mitigating evidence. Especially so given the
17 primary defense theory that Petitioner played a passive aider and abettor role in a crime meant
18 to gain money for drugs, the lingering doubt value of which might be discounted by a
19 mitigation defense that included details of his prior criminal acts and a post hac mental state
20 defense.
21 iii. Conclusions
22 A fair-minded jurist could find that Petitioner failed to establish counsel’s performance
23 fell below an objective standard of reasonableness and that absent counsel’s alleged
24 deficiencies, there remains a reasonable probability of a different outcome. Strickland, 466
25 U.S. at 694.
26 The California Supreme Court’s rejection of these claims on the merits was neither
27 contrary to, nor an unreasonable application of Strickland, nor based upon an unreasonable
28
56
1 determination of the facts in light of the evidence presented in the state court proceeding. 28
2 U.S.C. § 2254(d).
3 Claims III(C-E) shall be denied.
4 3. Claim II(I)
5 Petitioner alleges counsel Schultz was ineffective by failing to disclose the complete
6 breakdown of the attorney-client relationship, declare an irreconcilable conflict, request a
7 hearing pursuant to People v. Marsden, 2 Cal. 3d. 118 (1970), and move to withdraw, violating
8 his rights under the Fifth, Sixth, Eighth and Fourteenth Amendments. (Doc. No. 51-1 ¶¶ 208-
9 214, 342-64.)
10 a. Supplemental Legal Standards
11 It is clearly established that the right to the assistance of counsel, as guaranteed by the
12 Sixth Amendment of the United States Constitution entitles a defendant to representation that
13 is free from conflicts. Wood v. Georgia, 450 U.S. 261, 271 (1981).
14 A breakdown in the attorney-client relationship can result in a denial of the right to
15 effective assistance of counsel. Frazer v. United States, 18 F.3d 778, 782-83, 785 (9th Cir.
16 1994); see also Brown v. Craven, 424 F.2d. 1166, 1169-70 (9th Cir. 1970) (trial court’s failure
17 to conduct inquiry into irreconcilable conflict arising from the client’s refusal to communicate
18 or cooperate with counsel resulted in denial of effective assistance of counsel); Schell v. Witek,
19 218 F.3d 1017, 1025, (9th Cir. 2000) (citing Smith v. Lockhart, 923 F.2d 1314, 1320 (8th Cir.
20 1991)) (the overarching constitutional question is whether the attorney-client conflict has
21 become so great that “[i]t resulted in a total lack of communication or other significant
22 impediment that resulted in turn in an attorney-client relationship that fell short of that required
23 by the Sixth Amendment.”).
24 In order to establish a violation of the Sixth Amendment, a defendant who raised no
25 objection at trial must demonstrate that an actual conflict of interest adversely affected his
26 lawyer’s performance. Cuyler v. Sullivan, 446 U.S. 335, 348 (1980). The Supreme Court has
27 defined an “actual conflict” by the effect a potential conflict had on counsel’s performance.
28
57
1 Houston v. Schomig, 533 F.3d 1076, 1081 (9th Cir. 2008) (citing Mickens v. Taylor, 535 U.S.
2 162, 171 (2002)).
3 Prejudice may be presumed in cases where a “serious conflict” between defendant and
4 counsel gives rise to constructive denial of counsel. Perry v. Leeke, 488 U.S. 272, 278-79
5 (1989); see also Schell, 218 F.3d 1027 (“In the event that the trial court determines that a
6 serious conflict did exist that resulted in the constructive denial of assistance of counsel, no
7 further showing of prejudice is required; and Schell's trial shall be presumed to have been
8 unfair.”); see also Strickland, 466 U.S. at 692 (“Actual or constructive denial of the assistance
9 of counsel altogether is legally presumed to result in prejudice.”).
10 A lawyer’s violation of ethical norms does not make the lawyer per se ineffective. Burt
11 v. Titlow, 571 U.S. 12, 18 (2013).
12 b. State Court Direct and Collateral Review
13 Petitioner presented claim II and all its subclaims in the second state exhaustion petition
14 (see Lod. Doc. No. 30 at 105-99) and it was summarily denied on the merits (Lod. Doc. No.
15 31, Order Denying Cal. Pet., In re Colin Raker Dickey, No. S165302 (May 29, 2012)).
16 Relatedly, Petitioner’s claim the trial court erred by not holding a Marsden hearing was
17 considered and denied on the merits on direct appeal. Dickey, 35 Cal. 4th at 917-22.
18 c. Analysis
19 i. Deficient Performance
20 Petitioner argues Schultz was deficient by failing to disclose to the trial court that a
21 post-guilt phase breakdown in his relationship with Petitioner was so serious that it prevented
22 effective assistance of counsel, and by failing to withdraw as counsel. Petitioner supports the
23 argument by observing that he was dissatisfied with Schultz’s incompetent performance at the
24 guilt phase and that following the guilt phase verdict there was a complete breakdown of the
25 attorney-client relationship resulting in no communication between the two. (Doc. No. 51-1 ¶¶
26 343-345.)
27 Petitioner argues these impediments, combined with Schultz’s lack of preparation for
28
58
1 the penalty phase resulted in constructive denial of assistance of counsel at the penalty phase.7
2 See Daniels, 428 F.3d at 1201 (irreconcilable conflict found where distrust resulted in complete
3 breakdown in communication between counsel and client).
4 Petitioner argues the irreconcilable conflict was apparent in: (i) Schultz’s actions at an
5 in limine hearing just prior to the penalty trial, where Schultz incorrectly characterized
6 Petitioner’s Marsden request as a matter to be raised in a subsequent new trial motion; (ii)
7 Schultz’s failure to advise Petitioner on the latter’s request not to be personally present at the
8 penalty trial; and (iii) Schultz’s failure to present any mitigating evidence at the penalty trial.
9 (Doc. No. 51-1 ¶ 346; see also RT 5045-49; Pet. Ex. 12 ¶ 12.)
10 The California Supreme Court on direct appeal denied claimed Marsden error by the
11 trial court, stating that:
12
In [People v.] Marsden [(1970) 2 Cal. 3d 118], we said: [A] judge who denies a
13 motion for substitution of attorneys solely on the basis of his courtroom
observations, despite a defendant's offer to relate specific instances of
14 misconduct, abuses the exercise of his discretion to determine the competency
of the attorney. A judicial decision made without giving a party an opportunity
15 to present argument or evidence in support of his contention is lacking in all the
attributes of a judicial determination. (Spector v. Superior Court (1961) 55 Cal.
16 2d 839, 843 [13 Cal.Rptr. 189, 361 P.2d 909].) (Marsden, supra, 2 Cal. 3d at p.
124 [84 Cal.Rptr. 156, 465 P.2d 44].)” (People v. Jones (2003) 29 Cal. 4th
17 1229, 1244, 131 Cal.Rptr.2d 468, 64 P.3d 762.)
18 A defendant is entitled to have appointed counsel discharged upon a showing
that counsel is not providing adequate representation or that counsel and
19 defendant have become embroiled in such an irreconcilable conflict that
ineffective representation is likely to result. (People v. Earp (1999) 20 Cal. 4th
20 826, 876 [85 Cal.Rptr.2d 857, 978 P.2d 15] (Earp ); People v. Memro (1995) 11
Cal. 4th 786, 857 [47 Cal.Rptr.2d 219, 905 P.2d 1305] (Memro ).) (People v.
21 Jones, supra, 29 Cal. 4th at pp. 1244–1245, 131 Cal.Rptr.2d 468, 64 P.3d 762.)
22 Defendant contends that, following the guilt phase of the trial, he sought to
make a motion for the appointment of different counsel to assist him in the
23 penalty phase, and the court, without conducting the hearing required by
Marsden, prejudicially erred by declining to rule on his motion until the penalty
24 phase was concluded.
25 The Attorney General responds that defendant was not making a motion for the
appointment of substitute counsel to represent him in the penalty phase. Rather,
26 the Attorney General contends, defendant moved for the appointment of
27
7
Petitioner’s claim Schultz’s lack of preparation for the penalty phase denied him counsel fails for reasons stated
28 above in claims III(C-E).
59
separate counsel for the purposes of preparing a motion for a new trial based
1 on, among other grounds, incompetence of counsel during the guilt phase. Once
the court ascertained that defendant was seeking the appointment of separate
2 counsel to prepare a new trial motion, the Attorney General argues, the court
properly declined to rule on it until the trial was over, at which time separate
3 counsel for that purpose was appointed.
4 While the matter is not entirely free from doubt, doubt engendered largely by
the court's confused and confusing references to Marsden, we agree with the
5 Attorney General's characterization of defendant's motion.
6 Defendant's trial counsel, Marvin F. Schultz, clearly framed the matter as, not a
motion for substitute counsel to represent defendant in the penalty phase, but
7 rather as a motion for the appointment of separate counsel to represent
defendant in the preparation of a motion for a new trial, which motion, counsel
8 said, was likely to include, among other grounds, allegations *** that he acted
incompetently in the guilt phase. The disagreements between defendant and
9 himself, counsel said, regarded “trial tactic decisions that were made on
witnesses who were called and not called and the way some things were
10 presented.” The idea for the appointment of separate counsel for this limited
purpose, according to counsel, was his, not defendant's.12
11
12
----------------------------------------FOOTNOTE---------------------
13
n.12 “MR. SCHULTZ: I have explained to Mr. Dickey the ground—the types of
14 things that could be presented to the Court as part of a motion for a new trial
when the time is appropriate for that motion, and that there are some
15 disagreements between Mr. Dickey and I as to some trial tactic decisions that
were made on witnesses who were called and not called and the way some
16 things in the case were presented.
17 In terms of including in a motion for new trial any issues of incompetency of
counsel I advised Mr. Dickey that, obviously, I think my decisions were correct.
18 And I understand why he would disagree with that. But in terms of being able to
present that issue as a motion for a new trial, it was my advice to Mr. Dickey
19 that the request should be made to the Court for an attorney to—a separate
attorney to review the record, considering we do have an existing transcript that
20 somebody can review at this point, and determine whether or not he can consult
with that attorney on the issues that he disagreed with me on, to determine
21 whether or not there was a legitimate basis or any basis for making a motion for
new trial based on incompetence of counsel.
22
And I was concerned when Mr. Dickey presented the requ
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