(DP) Weaver v. Chappell

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7 UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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10 WARD FRANCIS WEAVER, JR., Case No. 1:02-cv-05583-AWI-SAB

11 Petitioner, DEATH PENALTY CASE

12 v. MEMORANDUM AND ORDER:

13 KEVIN CHAPPELL, Warden of San Quentin (1) DENYING CLAIMS 3-7, 10-34; (2)

State Prison, DENYING PETITIONER’S MOTION

14 FOR RECORD EXPANSION AND

Respondent.1 EVIDENTIARY HEARING (3)

15 DENYING PETITION FOR WRIT OF

HABEAS CORPUS, and (4) ISSUING

16 CERTIFICATE OF APPEALABILITY

FOR CLAIMS 3, 7, 8, AND 9

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(ECF Nos. 107, 216)

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19 CLERK TO VACATE ANY AND ALL

SCHEDULED DATES AND

20 SUBSTITUTE RON BROOMFIELD AS

21 RESPONDENT WARDEN AND

ENTER JUDGMENT

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25 Petitioner Ward Francis Weaver, Jr. (hereinafter “Petitioner”) is a state prisoner,

26 sentenced to death, proceeding with a petition for writ of habeas corpus pursuant to 28 U.S.C. §

27 1Pursuant to Fed. R. Civ. P. 25(d), Ron Broomfield, Acting Warden of San Quentin State Prison, shall be

substituted as Respondent in place of his predecessor wardens.

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1 2254. He is represented in this action by attorneys Karen Schryver and Timothy Foley, each

2 appointed pursuant to the Criminal Justice Act, 18 U.S.C. § 3599(a) (hereinafter “CJA”).

3 Respondent Kevin Chappell is named as Warden of San Quentin State Prison. He is

4 represented in this action by Amanda Cary of the Office of the California Attorney General.

5 Before the Court for a decision are (1) the amended petition for writ of habeas corpus

6 filed in this proceeding on September 1, 2009 (hereinafter the “Amended Petition”) (ECF No.

7 107), (2) Amended Petition Claims 3-7 and 10-34 including subclaims (hereinafter “Claim” or

8 “Claims”), and (3) Petitioner’s motion for expansion of the record and evidentiary hearing

9 relating to certain of the Claims (see ECF No. 216).

10 Having previously denied Claims 1, 2 (ECF No. 162) and Claims 8 and 9 (ECF No. 209),

11 and upon careful review of the parties’ filings and the relevant case law and for the reasons set

12 out below, the undersigned finds that (1) Claims 3-7, 10-30, and 32-34 shall be denied with

13 prejudice and Claim 31 shall be denied without prejudice as moot, (2) Petitioner’s motion for

14 record expansion and evidentiary hearing shall be denied, (3) the Amended Petition shall be

15 denied, and (4) a Certificate of Appealability shall issue only for Claims 3, 7, 8, and 9.

16 I. BACKGROUND

17 On August 10, 1982, the Kern County Sheriff’s Department filed a Felony Criminal

18 Complaint in the Kern County Municipal Court, charging Petitioner with the 1981 murders of

19 Robert Radford and Barbara Levoy, the kidnapping of Levoy, and unlawful sexual intercourse,

20 sodomy, and oral copulation by force upon Levoy. (CT 131-132.)

21 On August 19, 1982, attorney David Huffman was appointed to represent Petitioner.

22 (August 19, 1982 RT at 3.)

23 On September 22, 1982, Petitioner was charged by Information in the Kern County

24 Superior Court with the murders of Robert Radford and Barbara Levoy with special

25 circumstances of murder during the commission of kidnap, rape, sodomy, and multiple murder,

26 and the kidnap of Levoy.2 (CT 203-205.)

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2 The Information was amended on June 7, 1984. (CT 987 -990.) On November 14, 1984, the court struck the

28 special circumstances based on rape and sodomy. (RT 3136-38; CT 1256.)

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1 On June 8, 1983, Donnalee Mendez, soon to be David Huffman’s wife Donnalee Mendez

2 Huffman, was appointed to represent Petitioner as co-counsel (hereinafter “Counsel” refers to

3 either or both Mr. and Mrs. Huffman, “Lead Counsel” refers to Mr. Huffman, and “Second

4 Counsel” refers to Mrs. Huffman). (CT 242.)

5 During the arraignment hearing, on October 27, 1982, Counsel raised a doubt as to

6 Petitioner’s competence to stand trial. Counsel pointed to reports by jailers and/or prisoners that

7 Petitioner was acting abnormally and hearing voices, and to Petitioner’s appearance. (September

8 29, 1982 RT at 2-3; CT 206.) The arraignment court agreed with Counsel, and with the

9 concurrence of the parties appointed two experts to evaluate Petitioner pursuant to Penal Code

10 section 1368 (competence to stand trial) and section 1026 (sanity). (CT 207-208). The parties

11 submitted the matter of trial competence on the experts’ reports. (CT 209.) The arraignment

12 court reviewed the reports and found that Petitioner to be “presently sane” and “sane for

13 purposes of standing trial, “and proceedings were reinstated. (Id.) Thereupon, Petitioner entered

14 a plea of not guilty to all Counts and denied all allegations. (Id.) Subsequently, Petitioner

15 additionally plead not guilty by reason of insanity (hereinafter “NGI”) to all Counts. (See April

16 13, 1984 RT at 4-5; CT 639, 673, 917-20, 934, 982-89.)

17 Petitioner’s trial began on September 26, 1984. (CT 1159.) The trial court denied

18 pretrial motions to exclude Petitioner’s taped confession and admissions to law enforcement.

19 (CT 1258-1259.)

20 On December 19, 1984, the jury found Petitioner guilty of two Counts of murder and one

21 Count of kidnapping with special circumstances of murder during the commission of kidnap and

22 multiple murder. (CT 1355-1357, 1482-1490.)

23 The sanity phase began on January 14, 1985. (CT 1497-1498.) On February 28, 1985,

24 following proceedings during which Lead Counsel largely was absent due to alleged health

25 problems, and following Petitioner’s waiver of the presence of Lead Counsel, the jury

26 deliberated 42 minutes and found Petitioner sane at the time of the crimes. (CT 1577-1578,

27 1627-1629.)

28 On March 5, 1985, the penalty phase began. (CT 1630-1631.) On March 6, 1985,

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1 Petitioner testified for fifteen minutes and Second Counsel presented argument in mitigation.

2 (RT 6976-82, 7027-7039; CT 1632-1633.) On March 7, 1985, after less than one full day of

3 deliberations, the jury returned a death verdict. (RT 7064-65; CT 1636-1637, 1708-1709.)

4 On April 4, 1985, the trial court entered judgment of death. (RT 7104-7111; CT 1759-

5 1763.)3

6 The California Supreme Court affirmed Petitioner’s conviction on direct appeal on

7 August 20, 2001. (Lod. Doc. No. 4, People v. Weaver, 26 Cal. 4th 876 (2001), California

8 Supreme Court Number S004665.) That court denied his petition for rehearing on October 24,

9 2001. (Lod. Doc. No. 6.) Petitioner filed a petition for writ of certiorari in the United States

10 Supreme Court on January 17, 2002, which was denied on May 13, 2002. (Lod. Doc. Nos. 27,

11 29.)

12 Petitioner, through appellate counsel, filed a petition for writ of habeas corpus in the

13 California Supreme Court on September 28, 1998, seeking to set aside the judgments of

14 conviction and sentence of death. (Lod. Doc. No. 7, In re Ward Francis Weaver, Jr., California

15 Supreme Court Number S073709.) On November 14, 2001, the California Supreme Court

16 denied the petition on the merits and also denied some claims as procedurally barred. (Lod. Doc.

17 No. 8.)

18 On May 17, 2002, Petitioner commenced this proceeding under 28 U.S.C. § 2254 by

19 filing a combined request for appointment of counsel and temporary stay of execution. (ECF

20 Nos. 1, 2.) On May 30, 2002, Petitioner filed a separate request to proceed in forma pauperis.

21 (ECF No. 3.) The Court granted requests for appointment of counsel and in forma pauperis

22 status and denied as moot the stay of execution, on May 31, 2002. (ECF No. 4.)

23 On May 5, 2003, Petitioner filed in this proceeding a petition for writ of habeas corpus

24 pursuant to 28 U.S.C § 2254. (ECF No. 32.)

25 3 Unless otherwise indicated, throughout this order, “1SHCP” refers to the first state habeas corpus petition;

26 “2SHCP” refers to the second state habeas corpus petition; “CT” refers to the clerk’s transcript on appeal, “RT” to

the reporter’s transcript on appeal, “SCT” to the supplemental clerk’s transcript on appeal. Other transcripts are

referenced by date. Reference to page numbering is to: ECF page numbering for documents filed electronically in

27 CM/ECF, Bates numbering for CT documents and where otherwise expressly noted, and internal pagination for all

other documents. Reference to state law is to California law unless otherwise noted.

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1 Petitioner filed a second petition for writ of habeas corpus in the California Supreme

2 Court on May 6, 2003, again seeking to set aside the judgments of conviction and sentence of

3 death. (Lod. Doc. No. 23, In re Ward Francis Weaver, Jr., California Supreme Court Number

4 S115638.)

5 On March 16, 2004, this Court held the federal proceeding in abeyance pending the

6 conclusion of state court exhaustion proceedings. (ECF No. 56.)

7 On August 26, 2009, the California Supreme Court denied the second petition on the

8 merits and also denied some claims as procedurally barred. (Lod. Doc. No. 24.)

9 On September 1, 2009, Petitioner filed the operative Amended Petition in these

10 proceedings. (ECF No. 107.)

11 Respondent filed his answer on March 30, 2010, admitting the jurisdictional allegations,

12 asserting procedural defenses, and denying that Petitioner is entitled to federal habeas relief on

13 Claims 1 through 34. (ECF No. 116.)

14 On June 2, 2010, the Court found all the Claims in the Amended Petition to be exhausted

15 (except for a subclaim of Claim 7 as to which the Warden waived exhaustion); and found the

16 Amended Petition timely filed. (ECF No. 121.)

17 On March 24, 2014, the Court denied on the merits Claim 1 (alleging deprivation of trial

18 counsel due to impairment and incompetence), and Claim 2 (alleging deprivation of counsel and

19 a fair trial due to counsel’s conflicts of interest). (ECF No. 162.)

20 On March 31, 2016, the Court denied on the merits Claim 8 (alleging ineffective

21 assistance of counsel at the sanity phase), and Claim 9 (alleging ineffective assistance of counsel

22 at the penalty phase). (ECF No. 209.)

23 On November 10, 2016, Petitioner filed his brief in support of Claims 3-7 and 10-34.

24 (ECF No. 210.)

25 On May 12, 2017, Respondent filed his brief in opposition to Claims 3-4 and 10-34.

26 (ECF No. 211.)

27 On September 15, 2017, Petitioner filed his brief and a supporting exhibit in reply to

28 Respondent’s opposition brief. (ECF Nos. 214 & 215, respectively.)

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1 On December 13, 2017, Petitioner moved for: (i) evidentiary hearing on Claims 3, 4, 6, 7,

2 11 and certain procedural default allegations relating to Claims 11, 12 and 18, and (ii) expansion

3 of the record with additional documentation relating to Claims 3, 4, 6, 7 and 11. (ECF Nos. 216,

4 217.) Respondent filed his opposition to the motion on February 13, 2018. (ECF No. 218.)

5 Petitioner filed his reply to the opposition on April 13, 2018. (ECF No. 219.)

6 II. STATEMENT OF FACTS

7 This factual summary is taken from the California Supreme Court’s summary of the facts

8 in its August 20, 2001 opinion. People v. Weaver, 26 Cal. 4th 876 (2001). Pursuant to 28

9 U.S.C. §§ 2254(d)(2), (e)(1), the state supreme court’s summary of facts is presumed correct.

10 See Kirkpatrick v. Chappell, 950 F.3d 1118, 1131 (9th Cir. 2020), cert. denied, 141 S. Ct. 561

11 (2020) (“Unlike § 2254(d), § 2254(e)(1)’s application is not limited to claims adjudicated on the

12 merits. Rather, it appears to apply to all factual determinations made by state courts.”).

13 Petitioner does not present clear and convincing evidence to the contrary; thus, the Court adopts

14 the factual recitations set forth by the state supreme court. Vasquez v. Kirkland, 572 F.3d 1029,

15 1031 n.1 (9th Cir. 2009) (“We rely on the state appellate court’s decision for our summary of the

16 facts of the crime.”).

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18 I. Guilt Phase

19 A. Facts

20 Robert Radford, 18 years old, was assigned to basic training for the United States

Air Force in Colorado. While there, he met 23-year-old Barbara Levoy. When

21 Radford completed his training, he traveled to his home in Edmonds, Washington,

and Levoy accompanied him to meet his parents. The couple then drove south to

22 Pinedale, California (near Fresno) to meet Radford's grandmother. The couple's

ultimate destination was Las Vegas, Nevada, where Radford would begin his first

23 tour of duty at Nellis Air Force Base. Levoy planned to fly home to Colorado

from Las Vegas.

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Radford and Levoy arrived in Pinedale on the afternoon of February 5, 1981, and

25 visited with Radford's grandmother. They left Pinedale around 7:00 p.m. the same

day, anxious to get to Las Vegas. Unfortunately, their car broke down one mile

26 east of Tehachapi. James Powell was coming home from work around 11:00 p.m.

and encountered Radford, his disabled car on the side of the road with its

27 emergency lights flashing. Powell saw a young woman in the car. He offered the

couple a ride back to Tehachapi, but Radford declined because it was in the

28 opposite direction from which he was traveling. Powell left.

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1 Our knowledge of what happened next derives from defendant's admissions to a

cellmate, Ricky Gibson, defendant's tape-recorded interviews with police, and

2 defendant's testimony at trial. Around 10:00 p.m., defendant, who was working as

a long-haul trucker, saw Radford's car on the side of the road as he drove by in the

3 opposite direction. n.1 Defendant exited the highway and circled back to offer his

assistance. Radford and Levoy accepted his offer to drive them to Mojave. After

4 driving about five miles, defendant pulled over and asked Radford to help him

shift the load on the flatbed of his truck. Levoy stayed in the cab. While Radford

5 was bent over with his back turned, defendant struck him on the back of the head

with a “cheater pipe,” a three to four-foot length of metal pipe truckers use to gain

6 leverage when tightening the bindings that restrain a load on the truck. A later

autopsy revealed 11 separate lacerations to Radford's head.

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-FOOTNOTE-

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n.1 Asked why he stopped to help, defendant explained that he had plenty of time

9 because he did not have to be in San Francisco to deliver his load until 8:00 a.m.

the next morning. The way defendant expressed it, however, proved prophetic and

10 chilling: he said he stopped to help because “I had some time to kill.”

11 -END FOOTNOTE-

12

Defendant rejoined Levoy in the truck cab, displayed a knife, and had her sit with

13 her head between her legs and her hands behind her, a technique defendant had

learned when transporting prisoners during his military service in Vietnam.

14 Defendant reversed direction and drove to Bakersfield; near Kettleman City, he

stopped and raped Levoy. He then drove towards San Francisco, pulled off the

15 highway once more and again raped Levoy.

16 Meanwhile, a citizen reported having seen Radford on the side of the road where

defendant had left him. Police responded to the scene and attempted to keep

17 Radford alive, but he died on the way to the hospital. Police found a large amount

of blood at the crime scene. At the hospital, Radford's wallet, with his

18 Washington State driver's license, was found, allowing police to link Radford to

the disabled car a few miles away. The car contained a woman's purse and several

19 pieces of luggage. Correctly surmising that Radford had been traveling with a

woman, police forced open the car and discovered identification belonging to

20 Levoy. Police then issued a missing person report and organized a search effort to

find her. Their efforts came too late to save Levoy.

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After he deposited his cargo in San Francisco, defendant drove towards his home

22 in Oroville. At a secluded spot outside that town, he stopped and asked Levoy to

get out of the truck. He tied her hands and feet with electrician's tape, but when he

23 attempted to gag her, Levoy struggled and bit defendant severely on the thumb.

He then strangled her. He dug a grave and buried Levoy's body there before

24 driving into town to meet his wife, who was working a late shift in a local

restaurant. It was suggested defendant move the body, so defendant took his

25 wife's car and returned to the grave, exhumed the body, put it in the trunk of the

car and drove home. When he arrived, defendant's three children were awake and

26 asked him about his bloody thumb. He told them he had gotten in a fight and that

they should stay in the house because his assailant might come looking for him.

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With the children in the house, defendant moved Levoy's body from the car to a

1 shallow grave dug in his backyard. Defendant previously had begun digging

trenches in his yard for a sewer line and had instructed his 10-year-old son and

2 another boy to keep working on the digging project while he was away driving his

truck. Some weeks later, defendant exhumed Levoy's body again and moved it to

3 a deeper grave elsewhere in his yard. He then built a wooden platform over the

grave so his wife could stand on it and hang out the laundry without getting her

4 feet wet in the grass.

5 Police were stymied in their attempt to solve Radford's murder and Levoy's

disappearance. Then, 17 months after the crimes, prison inmate Ricky Gibson

6 contacted authorities and reported that defendant, who was serving time in prison

for subsequent unrelated (but similar) crimes, had told him the story of how he

7 killed Radford and raped and killed Levoy.

8 Police went to defendant's home in Oroville, interviewed defendant's wife and

son, and obtained consent to search the yard. Defendant's son directed police to

9 the platform, which they removed and discovered Levoy's badly decomposed

body. She was identified through her dental records. In addition, the body bore the

10 same clothes Levoy had been wearing when she disappeared, with the exception

that her panties were missing.

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12 An autopsy of Levoy's body yielded no clues about the cause of her death, due to

the advanced state of decomposition. Some electrician's tape, however, was found

13 stuck to the collar of her shirt.

14 Police proceeded to interview defendant at San Quentin State Prison. He agreed to

waive his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436 [86 S. Ct.

15 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974]) if he could first speak to his mother.

Police agreed. After speaking with his mother, he agreed to talk to police. In two

16 tape-recorded interviews, defendant admitted he had killed Radford and Levoy,

and that he had raped Levoy. He drew a map of the place in rural Oroville where

17 he had first buried Levoy. Following the map, police found an indentation in the

ground where defendant said he had dug the first grave; police also found some

18 black electrician's tape on the ground nearby.

19 Defendant testified at trial. He claimed he had heard the voice of a female named

Ladell in his head since he was 17 years old. He first heard a competing unnamed

20 male voice when he served in Vietnam in 1968 and 1969. He trusted the male

voice because it had warned him of danger in Vietnam and saved his life.

21 Defendant explained that he often used amphetamines to stay awake while driving

his truck, had taken amphetamines the day of the crimes and, at the time he killed

22 Radford, had not slept in a week and a half.

23 When he picked up Radford and Levoy, he noticed how attractive Levoy was and

became sexually aroused. The male voice started saying he should have sex with

24 Levoy. Ladell told him to leave Levoy alone. The male voice assured him he

would not get in trouble if he raped Levoy. Defendant testified, “I just couldn't go

25 against him. I just couldn't help it. Had to go along with what sounded like the

most logical thing to do.” The male voice said to knock Radford out so he could

26 be alone with Levoy. Defendant decided to follow the male voice, but did not

think Radford would die because defendant had assaulted someone with the

27 “cheater pipe” in 1977 and the victim did not suffer serious injury. Defendant said

that if he had wanted to kill Radford, he would have used the knife he kept in the

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truck or used some other, more silent means of killing that he had learned in the

1 military.

2 Defendant testified that when he hit Radford, the young man fell off the truck

screaming. Defendant told him to “shut up” and when he did not, defendant struck

3 him “a couple” of times with the pipe, taking full swings with both hands on the

pipe. He did not check to see if Radford was alive or dead; he just assumed

4 Radford was “out.” He then rejoined Levoy in the truck, displayed his knife, and

started driving. The voice named Ladell was chastising him while the male voice

5 was telling him to ignore Ladell. When they approached Kettleman City, the male

voice reminded defendant to have sex with Levoy. He pulled over around 4:00

6 a.m., displayed his knife again, and then raped Levoy. He then drove north

towards San Francisco. About an hour later, he pulled over and raped Levoy

7 again.

8 Defendant claimed he did not intend to kill Levoy and, after the second rape, was

looking all along the route for a safe yet deserted place to drop her off. As it

9 began to get light, he abandoned this plan and took her to the Bay Area with him.

He instructed Levoy to sit on the floor of his truck while he delivered his load.

10 She obeyed, sitting quietly in the truck for 45 minutes. He then drove to Oakland

to pick up another load for a local delivery. Defendant was stopped on the way to

11 Oakland by a California Highway Patrol officer, but Levoy complied with

defendant's instructions and did not call out to the officer or try to escape. After

12 stopping in Oakland, defendant drove home to Oroville, taking a long and

winding route.

13

Defendant stopped four miles outside of Oroville. By now it was about 11:00 p.m.

14 on February 6, 1981. Defendant told Levoy he would tie her up and leave her

under a bridge, coming back the next day when he was scheduled to drive to

15 Southern California. He would then release her in Los Angeles in a warehouse

district. He bound her with electrician's tape, but when he tried to gag her with

16 some fabric diapers, she struggled and bit him on the thumb and would not let go.

Defendant testified he twice hit her with his fist and then he blacked out and

17 began jerking the diaper around Levoy's neck. He stopped when he realized she

was no longer biting him. She slumped over; defendant at first thought she was

18 unconscious but then determined she was dead. He cried and asserted he had

never intended to kill her, even when she bit him. The male voice told him to get

19 rid of the evidence. As indicated, he buried her where he killed her, then exhumed

her body twice before finally burying her in his yard.

20

The next morning, on February 7, 1981, Thomas Jenkins, an insurance adjuster,

21 met with defendant and noticed facial abrasions and scratches, as well as a white

bandage on his hand. Defendant said his thumb had been almost bitten off by

22 another trucker.

23 Defendant's first wife, Patricia Budrow, testified that defendant hates to be bitten.

She testified she once bit his hand when they were wrestling in the car and he

24 became very angry and began choking her. Another time, she bit his hand when

they were wrestling on the floor. He grabbed her by the neck and looked dazed

25 and glassy-eyed. He later told her he did not know why he choked her, but that he

hated being bitten, and that when he was a child his mother would bite him until

26 he bled as a means of disciplining him. Budrow also testified that defendant's

mother confirmed the story and suggested Budrow use the same method to train

27 her children.

28 Weaver, 26 Cal.4th at 898-903.

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II. Sanity Phase

1

A. Facts

2

1. Evidence of Defendant's Family and Childhood

3

Dr. Albert Raitt, Jr., staff psychiatrist and director of the Butte County Mental

4 Health Program, testified defendant's maternal aunt, Kathryn Bernardo, was

schizophrenic. Dr. Raitt also concluded from medical records that Bernardo's

5 daughter (and defendant's cousin) Lucia Bernardo, was schizophrenic. Dr. Raitt

explained that experts believe there is a genetic component to schizophrenia,

6 hence the chance defendant would be schizophrenic was enhanced by the fact that

his aunt and cousin were so afflicted.

7

Katie S. testified she is defendant's sister. She is 15 months younger than

8 defendant and thus was 39 years old at the time of trial. When she was six years

old, defendant cut off one of her fingers while playing with a hatchet. She later

9 came to believe this act was intentional. About a year later, defendant tied her to a

tree, saying he was going to hang her. She did not believe him until he began

10 tying a noose. When he began to place the noose around her neck, she began

screaming hysterically. Defendant left her tied to the tree for a long time before

11 returning and releasing her. When she said she would tell their mother what he

had done, he threatened to beat her up.

12

Other incidents occurred in the next three years. Once, when defendant's sister

13 was in a field, he stampeded a herd of cattle into the field, later telling her he had

done it on purpose. He also locked her in a tool shed and then set it on fire. He

14 finally let her out when she screamed and pounded on the door; the fire got out of

control and started a forest fire. Defendant's mother punished both of them for this

15 incident.

16 When Katie S. was nine years old, defendant tied her up and inserted sticks into

her vagina. When she was 12, defendant raped her and later told her she was

17 pregnant. She did not tell anyone about the rape because his threats frightened

her. Around that same time, she saw defendant and another boy torture a cat by

18 rubbing sandpaper on its bottom and then pouring turpentine on it. She would

sometimes get her friends to beat defendant up, although her parents punished her

19 with a whipping when they found out. When defendant was in high school, he

dated girls named Ladell and Sharon. He married his first wife, Patricia Budrow,

20 when he was 18 years old, but continued to live with his parents. Katie S.

admitted she was seeing a psychiatrist to help her deal with her childhood

21 experiences with defendant.

22 2. Lay Evidence of Mental Illness

23 Defendant's cousin, Russell Mathiasch, testified that in the mid -1970's he lived in

Texas. Around that time, he helped take defendant to a Veterans Administration

24 hospital in Dallas for treatment for his mental illness, but defendant was turned

away for lack of space; later that day, defendant was denied admission at another

25 Veterans Administration hospital in Waco. Defendant then returned home to

California.

26

Del Roy Barnett was a coworker and friend of defendant. They often hunted and

27 fished together. When defendant went to Vietnam, he gave Barnett some fishing

equipment because he did not expect to return. When defendant returned from

28 Southeast Asia, he was more aggressive and outgoing. He seemed more prone to

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violence; he was irritable and anxious, and he drank more. He was depressed and

1 had trouble keeping a steady job. Sometimes defendant did not appear to know

Barnett was with him; defendant would talk to himself or to unseen people.

2 Barnett thought defendant probably took drugs to stay awake when he drove his

truck, but he was not sure.

3

Carl Hogan and Richard Archuleta testified they had been incarcerated with

4 defendant in the Kern County jail, and they saw him talking to himself or to

unseen people.

5

Cecil Sneed, another Kern County jail inmate, testified defendant asked him to

6 testify that he had seen defendant talking to imaginary people. However, Sneed

had never seen defendant engage in such behavior. Sometime after the encounter,

7 he received a letter from defendant reading: “Anyone who hurt my case I would

do my best to do them in.” Sneed was impeached by evidence that after his

8 testimony he was to be released from jail and given a bus ticket, and by evidence

from two other jail inmates, Charles Shannon and Christopher Flores, who

9 testified Sneed was laughing and saying defendant was his “meal ticket out of

here” or words to that effect. Both Shannon and Flores reported seeing defendant

10 awake late at night, pacing and talking to himself.

11 3. Expert Witnesses Called by the Defense

12 Dr. Robert Gardner conducted a presentence diagnostic evaluation of defendant

for Humboldt County in 1977 following defendant's conviction of assault for

13 hitting a woman on the head with a baseball bat. Dr. Gardner testified defendant

was obviously depressed. Defendant said he had assaulted his wife several times

14 and had volunteered for the Army in order to be killed. Dr. Gardner concluded

defendant had suffered a “psychotic depressive reaction” and probably had an

15 “underlying psychiatric disorder” of an unspecified type and “might be on the

verge of becoming psychotic.” Dr. Gardner stated in his report that defendant was

16 at that time a “danger to others.” Although he did not find defendant was

suffering from schizophrenia, he did not rule it out.

17

Dr. Alfred Owre, Jr., was the chief psychiatrist for the Department of Corrections,

18 California Men's Colony in San Luis Obispo in 1977 and evaluated defendant for

parole suitability. While incarcerated at the Men's Colony, defendant was not

19 taking any prescribed medications, such as antipsychotic medication. Dr. Owre

noted defendant was in school while in prison and received satisfactory work

20 reports. He concluded defendant was a “person without psychiatric

symptomology except in his distorted relationships with women.” Quoting from

21 his 1977 report, Dr. Owre noted that, regarding relationships with women,

defendant “derives pleasure from suffering at their hands,” but “[w]hen stressed

22 he derives an emotional relief from inflicting pain upon them. This is sexualized.”

His 1977 diagnosis was that defendant suffered from a “passive aggressive

23 personality with depressive and then sadomasochistic features.” A secondary

diagnosis was that he bore “[a]ggressive sexuality towards adult women,

24 manifested by attempted rape.” Defendant presented no signs of schizophrenia to

Dr. Owre. Dr. Owre found defendant was not d epressed or suicidal, and he

25 testified defendant did not complain of hallucinations or delusions.

26 On redirect, Dr. Owre opined that defendant was “definitely out of reality

contact” and that, as he was observing him in the courtroom, Dr. Owre believed

27 defendant was “suffering from a chronic [u]ndifferentiated schizophrenic

condition. He is responding to internal messages. He shows a dearth of body

28

11

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sensing movements. He appears to me to have deteriorated markedly since we last

1 had him [at the Men's Colony].”

2 A year after Dr. Owre's evaluation, in 1978, Dr. Jack Tolchin also conducted a

periodic mental health evaluation of defendant at the California Men's Colony for

3 the Community Release Board. He agreed with Dr. Owre's previous diagnosis of

a “passive aggressive personality with sadomasochistic features or depressive

4 features or both.” This condition was not a mental disease or defect but was

instead a personality disorder. He did not find defendant to be schizophrenic, but

5 admitted defendant's personality disorder was “very severe.” Dr. Tolchin

recommended defendant continue in therapy and be monitored on parole by a

6 psychiatrist.

7 Dr. George Chappell, a psychiatrist, was appointed by the court to examine

defendant to determine his sanity in connection with his 1981 crimes in Ventura

8 County against David Galbraith and Michelle D. n.12 Dr. Chappell testified

defendant told him he was taking 600 milligrams of Mellaril, an antipsychotic

9 medication. Defendant told him he could not shave with a mirror because when he

looked at his own face, he heard voices telling him to cut his own throat.

10 Defendant reported to Dr. Chappell hearing two voices, one male and one female;

defendant claimed he had heard the voices “over a period of years and months.”

11 Dr. Chappell “had serious questions as to whether [defendant] heard voices”

because there was no direct evidence of his having heard such voices and it was

12 unusual that defendant had not complained to people close to him (like his wife)

about the voices.

13

-FOOTNOTE-

14

n.12 Evidence of these crimes, which occurred shortly after the crimes against

15 Radford and Levoy, was admitted at the penalty phase. (See discussion, post, pt.

III.A.)

16 -END FOOTNOTE-

17

Defendant told Dr. Chappell that he had been taking amphetamines for the

18 previous 18 months to stay awake while driving. Amphetamines would probably

aggravate an already existing psychosis, but Dr. Chappell did not believe

19 defendant suffered from schizophrenia or any other psychosis. Dr. Chappell

believed defendant “was malingering or faking some of his symptoms.” He found

20 defendant was legally sane at the time of the Ventura County crimes.

21 Dr. Theodore Donaldson, a clinical psychologist, also examined defendant for

insanity in connection with the Ventura County crimes. In addition to

22 interviewing him, Dr. Donaldson gave defendant the Minnesota Multiphasic

Personality Inventory and the Rorschach Projective Personality Test. Defendant

23 told him the voices in his head argued over whether to rape Michelle D., the

victim in the Ventura County case, and “the bad voice” won. Defendant knew the

24 rape was wrong but did it anyway. Dr. Donaldson thought defendant might be

fabricating the auditory hallucinations; he concluded defendant suffered from a

25 “mixed personality disorder, depressive neurosis, and a long history of

amphetamine abuse.” Persons suffering from a personality disorder such as

26 defendant's usually had a very small “built-in set of morals and values” and a

“lack of impulse control.” He did not think defend ant was schizophrenic. Like Dr.

27 Chappell, Dr. Donaldson concluded defendant was not suffering from a mental

disease or defect and was not insane in connection with the Ventura County case.

28

12

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Dr. Rolland Rose, a psychologist, conducted a diagnostic placement evaluation of

1 defendant in 1981 at the California Institute for Men in Chino, a state prison. Dr.

Rose had no personal recollection of defendant, but testified from his 1981 report.

2 He found defendant exhibited an “intense hostility toward women” and diagnosed

him as suffering from a “passive aggressive personality with schizoid features and

3 sexual sadism,” which he explained was a character disorder and not a mental

disease or defect. He admitted that one bearing such symptoms could be suffering

4 from schizophrenia in remission and that the character disorder Dr. Rose

diagnosed could be superimposed on a psychotic disorder.

5

Dr. Jack Shonkwiler, a psychiatrist, testified he was presently working under a

6 restricted license and was being supervised at a clinic by two other doctors. He

testified he had examined defendant in connection with the team of defense

7 experts, including Drs. Lundgren, Dietiker, and Cholet and Mr. Powers. He

interviewed defendant and defendant's mother and sister, and he viewed

8 videotapes of defendant answering questions pursuant to the Vietnam Era Stress

Inventory. He also examined reports from prior mental health evaluations of

9 defendant and his medical and military records.

10 Dr. Shonkwiler found defendant was “flooded with fantasies, images, visions of

[a] sadistic sexual and aggressive nature and he has essentially no control.” He

11 noted that the fact defendant had close blood relatives who were schizophrenic

gave him a “marked predisposition” to have schizophrenia. Dr. Shonkwiler's final

12 diagnosis of defendant was “paranoid schizophrenia and post-traumatic stress

[disorder]” (PTSD). He explained that the Diagnostic and Statistical Manual of

13 Mental Disorders (3d ed. 1980) (DSM-III) n.13 required evidence of the presence

of at least one of six diagnostic criteria under subdivision A for a diagnosis of

14 schizophrenia, and defendant fit all six categories. n.14 He had bizarre delusions

(he thought he could communicate with his mother telepathically); he had

15 grandiose delusions (he believed he could hold off police with explosives made

from household objects like bicycle tires and detergent); he had auditory

16 hallucinations involving two or more voices; and he had markedly illogical

thinking. Defendant fell “somewhat” into subdivision B, and there was evidence

17 of subdivision C although such evidence was not “dramatic.” For this latter

criterion, Dr. Shonkwiler noted defendant's social isolation, his blunt or flat affect,

18 and his belief in telepathy. Defendant did not suffer from manic depression so

subdivision D did not apply. Dr. Shonkwiler examined defendant when he was

19 38, so onset of symptoms occurred before age 45, fulfilling subdivision E.

Defendant did not suffer from an organic mental disorder or retardation (subd. F).

20

-FOOTNOTE-

21

n.13 DSM-III was the then accepted diagnostic tool in the mental health

22 profession. (See now Diagnostic and Statistical Manual of Mental Disorders (4th

ed. 1994) (DSM-IV).)

23

n.14 DSM-III contains the following diagnostic criteria for schizophrenic

24 disorder:

“A. At least one of the following during a phase of the illness:

25 “(1) bizarre delusions (content is patently absurd and has no possible basis in

fact), such as delusions of being controlled, thought broadcasting, thought

26 insertion, or thought withdrawal

“(2) somatic, grandiose, religious, nihilistic, or other delusions without

27 persecutory or jealous content

“(3) delusions with persecutory or jealous content if accompanied by

28 hallucinations of any type

13

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“(4) auditory hallucinations in which either a voice keeps up a running

1 commentary on the individual's behavior or thoughts, or two or more voices

converse with each other

2 “(5) auditory hallucinations on several occasions with content of more than one or

two words, having no apparent relation to depression or elation

3 “(6) incoherence, marked loosening of associations, markedly illogical thinking,

or marked poverty of content of speech if associated with at least one of the

4 following: [¶] (a) blunted, flat, or inappropriate affect [¶] (b) delusions or

hallucinations [¶] (c) catatonic or other grossly disorganized behavior

5 “B. Deterioration from a previous level of functioning in such areas as work,

social relations, and self-care.

6 “C. Duration: Continuous signs of the illness for at least six months at some time

during the person's life, with some signs of the illness at present. The six-month

7 period must include an active phase during which there were symptoms from

[criterion] A, with or without a prodromal or residual phase, as defined below.

8 “Prodromal phase: A clear deterioration in functioning before the active phase of

the illness not due to a disturbance in mood or to a Substance Use Disorder and

9 involving at least two of the symptoms noted below.

“Residual phase: Persistence, following the active phase of the illness, of at least

10 two of the symptoms noted below, not due to a disturbance in mood or to a

Substance Use Disorder.

11 “Prodromal or Residual Symptoms

“(1) social isolation or withdrawal

12 “(2) marked impairment in role functioning as wage-earner, student, or

homemaker

13 “(3) markedly peculiar behavior (e.g., collecting garbage, talking to self in public,

or hoarding food)

14 “(4) marked impairment in personal hygiene and grooming

“(5) blunted, flat, or inappropriate affect

15 “(6) digressive, vague, overelaborate, circumstantial, or metaphorical speech

“(7) odd or bizarre ideation, or magical thinking, e.g., superstitiousness,

16 clairvoyance, telepathy, 'sixth sense,' 'others can feel my feelings,' overvalued

ideas, ideas of reference

17 “(8) unusual perceptual experiences, e.g., recurrent illusions, sensing the presence

of a force or person not actually present [¶] ... [¶]

18 “D. The full depressive or manic syndrome (criteria A and B of major depressive

or manic episode), if present, developed after any psychotic symptoms, or was

19 brief in duration relative to the duration of the psychotic symptoms in [criterion]

A.

20 “E. Onset of prodromal or active phase of the illness before age 45.

“F. Not due to any Organic Mental Disorder or Mental Retardation.” (DSM-III,

21 supra, pp. 188-190, italics in original.)

22 -END FOOTNOTE-

23 Dr. Shonkwiler also opined that, in addition to schizophrenia, defendant suffered

from “full-blown post-traumatic stress [disorder].” The witness explained that

24 defendant's emotional detachment from his wife and children and his generally

constricted affect were both indicative of PTSD. Defendant's memory

25 impairment, difficulty concentrating and expressions of survivor guilt, apparent

from the videotapes of defendant taking the Vietnam Era Stress Inventory test,

26 were likewise consistent with PTSD. Dr. Shonkwiler testified that defendant's

chosen profession as a long-haul trucker could be viewed as a means to avoid

27 intimate relationships, which was consistent with the PTSD characteristic of

avoiding activities that arouse recollection of the traumatic event. Dr. Shonkwiler

28 surmised that defendant's amphetamine abuse may be related to a sleep

14

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disturbance, a common feature of PTSD. The witness admitted there was no

1 evidence defendant displayed hypervigilance, or an exaggerated startle response,

or that his symptoms intensified when exposed to events that symbolized or

2 resembled the war experience, three additional symptoms of PTSD. He testified

that defendant's abusive childhood predisposed him to have PTSD.

3

Dr. Shonkwiler also found defendant's amphetamine abuse was a factor in the

4 crimes: “My understanding was that [defendant] would have a quart jar with

amphetamines, ephedrine, maybe some valium, some elevil [sic], and would go

5 20 hours without sleep, driving a long range truck. He would just grab a fistful

and stuff it [in his mouth]. He didn't even know what he was taking. I am saying

6 that what he did may have been 30 percent schizophrenia, 30 percent post-

traumatic stress, 30 percent child abuse and the rest amphetamines and sleep

7 deprivation. But who knows what was happening back there in '81, like a half -

hour, hour before he murdered Radford or kidnapped Levoy. Maybe he shoved

8 some amphetamines in him, which would make amphetamines 90 percent of what

he did.”

9

Dr. Shonkwiler opined that if defendant were taking antipsychotic medication

10 during prior mental health evaluations, his symptoms would have been masked.

11 Dr. Shonkwiler concluded that although defendant knew right from wrong, he

was unable to conform his conduct to the law. As a result of his abusive

12 childhood, schizophrenia, PTSD, and amphetamine abuse, defendant had “[v]ery

poor impulse control. He is functioning at the level, the earliest level of a child

13 wanting something and reaching for it. No gratification delay, very poor impulse

control.” The witness concluded defendant was legally insane.

14

Dr. Kathe Lundgren, a clinical psychologist, interviewed defendant and

15 administered a series of psychological tests to him at the request of defense

counsel. She concluded defendant had “one of the most severe personality

16 disorders” and that “[a] perceived threat to his source of affection or love,” even

“a slight frustration could set him into a violent act or a socially unacceptable act.

17 Remember, that this is perceived stress, and besides his personality disorder is the

psychosis, which twists reality, so even though you and I might not see something

18 as being threatening or frustrating, in his twisted perception of it, it could be that

it is frustrating to him.” She concluded defendant suffered from chronic

19 undifferentiated schizophrenia with a sociopathic, antisocial personality.

20 Dr. Lundgren opined that defendant attempted to fake being sicker than he was,

but she determined this was just an aspect of his mental illness. She was not

21 prepared to give a professional opinion whether defendant was legally insane.

22 Dr. K. Edward Dietiker, a psychologist, testified he was a member of the defense

team of experts that examined defendant. He also administered some

23 psychological tests to defendant. He concluded defendant suffered from paranoid

schizophrenia. He opined that “under certain circumstances [it would be] very

24 difficult for [defendant] to hold his behavior in conformity to the law. I think that

may [vary] from one situation to another, but certain situations that involve him in

25 the sexual sadistic controlling kinds of relationships, it may be virtually

impossible.” Dr. Dietiker did not express an opinion about whether defendant was

26 insane at the time of the crimes.

27 Dr. Byron Wittlin, a psychiatrist, testified he worked at a Los Angeles area

Veterans Administration hospital and treated PTSD patients and Vietnam War

28 veterans. He examined defendant and read several reports and previous mental

15

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health evaluations of defendant. He believed that when defendant entered the

1 military, he was already suffering from a psychotic illness and explained that the

stress of combat could aggravate a preexisting psychotic condition. He concluded

2 defendant suffered from schizophrenia, paranoid type, as well as PTSD, but he

could not determine whether defendant was legally insane.

3

Dr. Clyde Donahoe, a psychologist, testified he also worked at a Los Angeles area

4 Veterans Administration hospital and treated PTSD patients. He examined

defendant, administered psychological tests and reviewed his military records. In

5 addition, Dr. Donahoe administered psychophysiological tests, measuring

defendant's heart rate and respiration while he was shown a series of pictures,

6 some of which portrayed scenes from the Vietnam War. Defendant self-reported

on the “Traumatic Violence Scale” to Dr. Donahoe that he had “either

7 participated in or witnessed these items: Killing of women or children, mutilation

of dead bodies, mutilation of live people, inadvertent air strikes or ambushes on

8 own or friendly troops, use of white phosphorous or napalm, torture of prisoners,

mercy killing, watching a buddy die in a gruesome manner, leaving one of the

9 civilians to die, taking human body parts as trophies, bagging dead bodies,

deliberate killing of old women, men or children ... and the routine killing of

10 prisoners.”

11 Dr. Donahoe concluded to a reasonable medical certainty that defendant suffered

from delayed PTSD. He did not know whether defendant suffered from PTSD in

12 1981 when the crimes occurred, but admitted that he could “very well” have had

the disorder then.

13

Dr. John Wilson, a clinical psychologist, works with veterans and is an expert on

14 PTSD. He developed the Vietnam Era Stress Inventory (VESI), a diagnostic tool

consisting of several hundred questions to help determine if a person suffers from

15 PTSD as a result of service in the Vietnam War. He interviewed defendant and

examined police reports and the numerous previous psychological evaluations of

16 defendant. Defendant reported to him that he had served as a combat engineer,

stood perimeter guard duty and encountered incoming mortar and “sapper” fire,

17 n.15 participated in unit patrols that “encountered anti-personnel weapons,”

engaged the enemy in a fire fight, was a tunnel rat (i.e., he entered underground

18 tunnels constructed by the Viet Cong) and checked enemy base camps, and was a

demolitions expert. Dr. Wilson opined that these experiences were consistent with

19 the dates of service in defendant's military record.

20 -FOOTNOTE-

21 n.15 A “sapper” is a “member of a military engineer unit organized, trained, and

equipped primarily to execute ... field fortification work” or “an engineer that

22 lays, detects, and disarms mines.” (Webster's 3d New Internat. Dict. (1961) p.

2013, col. 3.)

23

-END FOOTNOTE-

24

Dr. Wilson testified defendant has “paranoid schizophrenia in addition to post-

25 traumatic stress disorder and a mixed personality disorder. All three coexist.” He

opined that defendant was “absolutely not” faking the symptom of “thought

26 broadcasting,” that is, the belief that people know his thoughts. Dr. Wilson

explained: “[Defendant's] affect was so intense that when individuals try to make

27 [sic; mask?] their emotions, their affect [does not] quite correspond to the content

of what you are saying and his was so spontaneous and his speech so pressured

28 that that's very characteristic of someone who is suffering from this disorder.”

16

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1 Dr. Wilson opined that defendant's schizophrenia began developing “very early in

childhood” as a result of sexual and physical abuse by his parents, especially his

2 mother. In response to this upbringing, he began to express his sexual and

aggressive feelings by engaging in antisocial behavior, as that was more

3 comfortable than dealing with the “deeper level of his personality, where he is

terribly confused and loses touch with reality, and then begins to hear voices and

4 other things.” His war experiences fed into his underlying psychosis in two ways.

First, they gave sanction to his violent impulses. Second, the stress of war

5 removed “whatever remaining controls he had over his impulses. What we now

have is an individual with pre-existing psychotic tendencies, learned psychopathic

6 antisocial personality disorder kinds of traits, but with no means to modulate

them, because the effect of the war stress was to pull away those tenuous controls,

7 ego controls, ego defenses, so that in one sense what we have is now this

interplay. The post-traumatic stress disorder causes him to feel vulnerable. He re-

8 experiences images, nightmares, feelings connected to Vietnam. Those make him

feel vulnerable. That then feeds back into the psychosis, so he begins to have

9 hallucinations and hear voices. To cope with that, he behaves in an antisocial way.

So the three [psychological conditions, namely schizophrenia, PTSD, and

10 personality disorder,] literally feed into each other.”

11 Dr. Wilson concluded defendant was legally insane because, although he could

distinguish right from wrong, he “could not conform his conduct to the

12 requirements of the law.” He had read the reports of the four experts later called

by the prosecution, Drs. Cutting, Criswell, Burdick and Matychowiak, and

13 concluded they were incorrect in concluding defendant was sane, and that all four

experts overlooked defendant's PTSD.

14

Defendant's final sanity phase witness was Dr. Harry Kormos, a psychiatrist. He

15 is an expert on PTSD and the psychological problems of veterans, and had

worked with hundreds of veterans. He reviewed 10 to 12 inches of documents

16 relevant to defendant, including defendant's past mental health evaluations, the

police reports of the crimes, defendant's military record, and videotapes of

17 defendant answering the VESI questions. He also interviewed defendant for two

hours. He found defendant's responses on the VESI videotapes to be sincere and

18 consistent with those of other PTSD sufferers. He concluded defendant suffered

from paranoid schizophrenia and chronic PTSD.

19

Dr. Kormos explained that only a minority of psychologists and psychiatrists at

20 the time (1985) were “well versed” in PTSD and that it was a common error

among psychiatrists to focus on a patient's childhood and ignore the psychological

21 problems stemming from combat service in Vietnam. In addition, if defendant

was taking an antipsychotic drug like Mellaril, the drug could have masked the

22 symptoms of schizophrenia by reducing the intensity of symptoms.

23 Dr. Kormos concluded: “I consider [defendant] to have been, at the time that [the

crimes] took place, to have been aware of the requirements of the law but unable

24 to conform to those requirements.”

25 4. Expert Witnesses Called by the People

26 Dr. Paul Cutting, a psychiatrist, examined defendant at the pretrial stage to

determine whether defendant was competent to stand trial; at that time Dr. Cutting

27 also examined defendant for sanity. He interviewed defendant for a little over one

hour and examined about 200 pages of documents supplied to him by the district

28 attorney's office. He did not administer any psychological tests. Defendant told

17

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him about the voices he heard in his head, and Dr. Cutting thought defendant did

1 actually experience such voices.

2 Dr. Cutting concluded defendant suffered from a schizoid personality disorder but

not schizophrenia, because he did not satisfy enough of the criteria of

3 schizophrenia listed in the DSM-III. When asked, “What criteria in DSM-III ruled

out schizophrenia?” he replied: “It is a degeneration from our previous level,

4 previous level of behavior, and he didn't have any particular regression from [a]

previous high level of behavior or adaptation, his lifelong poor adaptation, and

5 there wasn't any skid downhill in this case, he just never rose [above] a very low

level of adaptation.” Dr. Cutting also found defendant did not suffer from PTSD.

6

Dr. Cutting concluded defendant was not insane: “I felt he knew what he was

7 doing. I felt that he could listen to one voice or the other, obey whichever voice he

wanted to obey. [¶] He didn't always obey the man's voice, incidentally, because

8 the man's voice would frequently tell him to kill himself, and, obviously, he didn't

act on that man['s voice].”

9

Dr. Francis Matychowiak, a psychiatrist, was appointed by the superior court to

10 examine defendant to determine if he was insane at the time of the crimes. Dr.

Matychowiak examined prior medical reports, law enforcement investigative

11 reports, and a transcript of defendant's court testimony. He also examined

defendant in jail. He concluded defendant suffered from a “personality disorder,

12 showing a mixture of paranoid and antisocial traits.” He concluded defendant was

sane. He rejected a diagnosis of PTSD, finding defendant's talking to imaginary

13 persons was a “survival technique” but that it was not a post-traumatic reaction to

his war experiences.

14

Dr. Richard Burdick, a psychiatrist, was also appointed by the court to examine

15 defendant for sanity. Dr. Burdick concluded defendant demonstrated an antisocial

personality disorder, meaning he was “responsive to inner urges and needs

16 without particular conscience for what effect their behavior will have on another

person.... They tend to get into difficulties with people and are either on the fringe

17 or breaking the law, getting arrested. They do not seem to be responsive to

correction by being incarcerated or having other forms of limits put on them.” He

18 thought defendant's report of hearing voices could be fabricated but, in any event,

the voices did not play a role in the crimes. He admitted that if someone suffered

19 from both schizophrenia and a personality disorder, it was sometimes difficult to

perceive the underlying schizophrenia.

20

Dr. Burdick admitted he was not an expert in PTSD but found no indication of

21 that condition. He testified that although he frequently examined criminal

defendants at the superior court's request, he did not frequently find them insane.

22 He concluded defendant was not legally insane.

23 Dr. Francis Criswell, a psychiatrist, was, like Dr. Cutting, appointed during the

pretrial period to examine defendant both for competence and sanity. Dr. Criswell

24 testified that defendant had suffered an abusive childhood from an “extremely

pathological family,” but he agreed with other prosecution witnesses that,

25 although defendant suffered from a personality disorder, he was not psychotic,

schizophrenic, or otherwise suffering from a mental disease or defect. Because

26 defendant appreciated the criminality of his conduct and could conform his

actions to the law, Dr. Criswell concluded defendant was not legally insane.

27

Dr. Mary Cholet testified for the People. She worked on the defense team of Dr.

28 Lundgren, Dr. Dietiker and Mr. Powers, was a psychological assistant at the time

18

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of her examination of defendant, but was a psychologist at the time of trial. She

1 administered psychological tests to defendant and interviewed him. She disagreed

with the other members of her team, concluding defendant was not schizophrenic

2 but merely suffered from a personality disorder. She found no evidence of organic

brain damage and saw no evidence of hallucinations when she was with

3 defendant. She also concluded defendant did not suffer from PTSD, although she

admitted she was not familiar with the various diagnostic tools used by experts in

4 the area of PTSD. She concluded defendant knew the difference between right

and wrong, admitted she was only “fairly familiar” with the legal definition f or

5 insanity, and admitted this case was the first one in which she had tested someone

to determine their sanity.

6

Weaver, 26 Cal. 4th at 934-45.

7 III. Penalty Phase

8

A. Facts

9

Bonnie Brown testified that on September 22, 1976, she was working as a

10 waitress in Eureka, California. At midnight, as she left work after her shift, a man

she later identified as defendant pulled up in a pickup truck and asked her for

11 directions. He then asked her to have a drink or some coffee with him. She

agreed, and they went to a Denny's restaurant. He convinced her to go see his big

12 rig truck at a nearby truck stop; they drove their own vehicles there. After seeing

the truck, they walked back to their cars. When her back was turned, defendant hit

13 her on the back of the head with a club. Brown fell and blacked out. When she

came to, defendant had his hand over her mouth and told her not to scream or he

14 would kill her. He led her to his pickup truck, still holding what looked like a two

to three-foot-long wooden baseball bat. He forced her into the passenger side of

15 his truck, but she escaped as he walked around to get in the driver's side. She ran

to the truck stop and screamed. Defendant was identified and arrested, eventually

16 pleading guilty to assault with a deadly weapon. He served a prison term as a

result.

17

In April 1981, just two months after defendant's crimes against Radford and

18 Levoy, defendant picked up two hitchhikers: David Galbraith, 18 years old, and

Michelle D., 15 years old. Both testified against defendant. Galbraith and

19 Michelle D. were from Burlington, Washington, and were running away after

Galbraith burglarized a sporting goods store to obtain supplies for their trip. They

20 were headed for Yreka, California, where Michelle D. had an uncle. Defendant

agreed to take them there. Defendant's 10-year-old son was riding with defendant

21 that day.

22 When they arrived in Yreka, Michelle D.'s uncle was not home and not expected

back for two weeks. Defendant suggested the couple come with him to his home

23 in Oroville, and they accepted. The young couple stayed with defendant's family

for two or three days. They accepted defendant's offer to take them to Ventura on

24 his next trucking run. During the trip, defendant offered to help Galbraith find

work. When they arrived in Ventura, defendant and Galbraith unloaded the truck,

25 and then they met someone named Jerry, who defendant said would take

Galbraith somewhere where he could get a job. Defendant went on a short

26 delivery run with Michelle D.; they all agreed to meet in a few hours. Before they

left, Galbraith saw defendant give Jerry a gun.

27

After Jerry and Galbraith had been driving about an hour, Jerry stopped the car

28 and called Galbraith to come look at some deer on the side of the road. Jerry then

19

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shot Galbraith in the back of the head. After Galbraith fell, Jerry shot him again in

1 the back of the head and then in the face. Jerry kicked him over an embankment

and left, without saying anything. Galbraith was conscious throughout the attack

2 and managed to crawl back to the roadway, where he was found by a forest

ranger.

3

After defendant and Michelle D. had driven around for awhile, he stopped and

4 raped her at gunpoint. Keeping her in the truck, he drove around again before

forcing her to orally copulate him a few hours later. He told her Galbraith would

5 be killed if she did not cooperate. He eventually returned with Michelle D. to his

home in Oroville. The victim did not try to escape because she feared for

6 Galbraith's life. Defendant released her in Marysville around 5:00 p.m., saying he

would return for her at 9:00 p.m. She did not go for help because she was in a

7 state of shock. When defendant did not return at 9:00 p.m., she went to the police.

8 Defendant testified at the penalty phase and explained that he took his family to

Idaho after his assault on Bonnie Brown in 1976, but returned and voluntarily

9 turned himself in when he learned police were looking for him. After his arrest, he

sought admission into two Veterans Administration hospitals in Texas but was

10 refused for lack of space.

11

12 Weaver, 26 Cal.4th at 974-76.

13 III. JURISDICTION

14 Relief by way of a petition for writ of habeas corpus extends to a person in custody

15 pursuant to the judgment of a state court if the custody is in violation of the Constitution or laws

16 or treaties of the United States. 28 U.S.C. §§ 2241(c)(3), 2254(a); Williams v. Taylor, 529 U.S.

17 362, 375 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the

18 U.S. Constitution. The challenged conviction arises out of Kern County Superior Court, which is

19 located within the jurisdiction of this Court. 28 U.S.C. §§ 2241(d), 2254(a).

20 This action was initiated after April 24, 1996. Therefore, the amendments to 28 U.S.C. §

21 2254 enacted as part of the Antiterrorism and Effective Death Penalty Act of 1996, 110 Stat.

22 1214 (hereinafter the “AEDPA”), apply. See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Van

23 Tran v. Lindsey, 212 F.3d 1143, 1148 (9th Cir. 2000), overruled on other grounds by Lockyer v.

24 Andrade, 538 U.S. 63, 71 (2003).

25 IV. STANDARDS OF REVIEW

26 A. Legal Standard - Habeas Corpus

27 Under the AEDPA, relitigation of any claim adjudicated on the merits in state court is

28 barred unless a petitioner can show that the state court’s adjudication of his claim:

20

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1 (1) [R]esulted in a decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme

2 Court of the United States; or

3 (2) [R]esulted in a decision that was based on an unreasonable determination of

the facts in light of the evidence presented in the State court proceeding.

4

5

6 28 U.S.C. § 2254(d); see also Harrington v. Richter, 562 U.S. 86, 98 (2011); Lockyer, 538 U.S.

7 at 70-71; Williams, 529 U.S. at 413.

8 “[A] state has ‘adjudicated’ a petitioner's constitutional claim ‘on the merits' for purposes

9 of § 2254(d) when it has decided the petitioner's right to post-conviction relief on the basis of

10 substance of the constitutional claim advanced, rather than denying the claim on the basis of a

11 procedural or other rule precluding state court review of the merits.” Brown v. Walker, Case No.

12 C 09-04663 JSW, 2014 WL 4757804 at *5 (N.D. Cal. Sept. 24, 2014) (citing Lambert v.

13 Blodgett, 393 F.3d 943, 969 (9th Cir. 2004)).

14 As a threshold matter, this Court must “first decide what constitutes clearly established

15 Federal law, as determined by the Supreme Court of the United States.” Lockyer, 538 U.S. at 71

16 (quoting 28 U.S.C. § 2254(d)(1)). In ascertaining what is “clearly established Federal law,” this

17 court must look to the “holdings, as opposed to the dicta, of [the Supreme Court's] decisions as

18 of the time of the relevant state-court decision.” Williams, 529 U.S. at 412. “In other words,

19 ‘clearly established Federal law’ under § 2254(d)(1) is the governing legal principle or principles

20 set forth by the Supreme Court at the time the state court renders its decision.” Id. In addition,

21 the Supreme Court decision must “squarely address [] the issue in th[e] case; otherwise, there is

22 no clearly established Federal law for purposes of review under AEDPA.” Moses v. Payne, 555

23 F.3d 742, 754 (9th Cir. 2009) (quoting Wright v. Van Patten, 552 U.S. 120, 125 (2008)); see also

24 Panetti v. Quarterman, 551 U.S. 930, 949 (2007); Carey v. Musladin, 549 U.S. 70, 74 (2006).

25 If no clearly established Federal law exists, the inquiry is at an end and the court must

26 defer to the state court’s decision. Carey, 549 U.S. 70; Wright, 552 U.S. at 126; Moses, 555 F.3d

27 at 760. In addition, the Supreme Court has clarified that habeas relief is unavailable in instances

28 where a state court arguably refuses to extend a governing legal principle to a context in which

21

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1 the principle should have controlled. White v. Woodall, 572 U.S. 415, 425-26 (2014). The

2 Supreme Court stated: “[I]f a habeas court must extend a rationale before it can apply to the facts

3 at hand, then by definition the rationale was not clearly established at the time of the state-court

4 decision.” Id. (quoting Yarborough v. Alvarado, 541 U.S. 652, 666 (2004)).

5 If the court determines there is governing clearly established Federal law, the court must

6 then consider whether the state court's decision was “contrary to, or involved an unreasonable

7 application of, [the] clearly established Federal law.” Lockyer, 538 U.S. at 72 (quoting 28

8 U.S.C. § 2254(d)(1)). “Under the ‘contrary to’ clause, a federal habeas court may grant the writ

9 if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a

10 question of law or if the state court decides a case differently than [the] Court has on a set of

11 materially indistinguishable facts.” Williams, 529 U.S. at 412-13; see also Lockyer, 538 U.S. at

12 72. “The word ‘contrary’ is commonly understood to mean ‘diametrically different,’ ‘opposite

13 in character or nature,’ or ‘mutually opposed.’ ” Williams, 529 U.S. at 405 (quoting Webster's

14 Third New International Dictionary 495 (1976)). “A state-court decision will certainly be

15 contrary to [Supreme Court] clearly established precedent if the state court applies a rule that

16 contradicts the governing law set forth in [Supreme Court] cases.” Id.

17 “Under the ‘reasonable application clause,’ a federal habeas court may grant the writ if

18 the state court identifies the correct governing legal principle from [the] Court’s decisions but

19 unreasonably applies that principle to the facts of the prisoner’s case.” Williams, 529 U.S. at

20 413. “[A] federal court may not issue the writ simply because the court concludes in its

21 independent judgment that the relevant state court d ecision applied clearly established federal

22 law erroneously or incorrectly. Rather, that application must also be unreasonable.” Id. at 411;

23 see also Lockyer, 538 U.S. at 75-76. “A state court's determination that a claim lacks merit

24 precludes federal habeas relief so long as fair-minded jurists could disagree on the correctness of

25 the state court's decision.” Richter, 562 U.S. at 101 (citing Yarborough, 541 U.S. at 664).

26 Therein the Supreme Court stated that:

27 As a condition for obtaining habeas corpus from a federal court, a state prisoner

must show that the state court's ruling on the claim being presented in federal

28 court was so lacking in justification that there was an error well understood and

22

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comprehended in existing law beyond any possibility for fair-minded

1 disagreement.

2 Id. at 101-05. In other words, so long as fair-minded jurists could disagree on the correctness of

3 the state court’s decision, the decision cannot be considered unreasonable. Id. at 98-99. In

4 applying this standard, “a habeas court must determine what arguments or theories supported . . .

5 or could have supported the state court’s decision; and then it must ask whether it is possible

6 fair-minded jurists could disagree that those arguments or theories are inconsistent with the

7 holding in a prior decision of [the Supreme Court].” Id. at 101-03. This objective standard of

8 reasonableness applies to review under both subsections of 28 U.S.C. § 2254(d). Hibbler v.

9 Benedetti, 693 F.3d 1140, 1146-47 (9th Cir. 2012). If the court determines that the state court

10 decision is objectively unreasonable, and the error is not structural, habeas relief is nonetheless

11 unavailable unless the error had a substantial and injurious effect on the verdict. Brecht v.

12 Abrahamson, 507 U.S. 619, 637 (1993).

13 Petitioner has the burden of establishing that the decision of the state court is contrary to

14 or involved an unreasonable application of United States Supreme Court precedent. Baylor v.

15 Estelle, 94 F.3d 1321, 1325 (9th Cir. 1996). Although only Supreme Court law is binding on the

16 states, Ninth Circuit precedent remains relevant persuasive authority in determining whether a

17 state court decision is objectively unreasonable. LaJoie v. Thompson, 217 F.3d 663, 669 n.6 (9th

18 Cir. 2000); Duhaime v. Ducharme, 200 F.3d 597, 600-01 (9th Cir. 1999).

19 The AEDPA requires considerable deference to the state courts. “[R]eview under §

20 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on

21 the merits,” Cullen v. Pinholster, 563 U.S. 170, 181 (2011), and “evidence introduced in federal

22 court has no bearing on 2254(d)(1) review.” Id. at 185. “Factual determinations by state courts

23 are presumed correct absent clear and convincing evidence to the contrary.” Miller-El v.

24 Cockrell, 537 U.S. 322, 340 (2003) (citing 28 U.S.C. § 2254(e)(1)). However, a state court

25 factual finding is not entitled to deference if the relevant state court record is unavailable for the

26 federal court to review. Townsend v. Sain, 372 U.S. 293, 319 (1963), overruled by Keeney v.

27 Tamayo-Reyes, 504 U.S. 1 (1992), superseded by status as stated in Williams v. Taylor, 529

28 U.S. 420 (2000).

23

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1 If a petitioner satisfies either subsection (1) or (2) of § 2254 for a claim, then the federal

2 court considers that claim de novo. See Panetti, 551 U.S. at 953 (when § 2254(d) is satisfied,

3 “[a] federal court must then resolve the claim without the deference AEDPA otherwise

4 requires.”); accord Frantz v. Hazey, 533 F.3d 724, 737 (9th Cir. 2008).

5 In this case, some of Petitioner’s claims and allegations were raised and rejected by the

6 California Supreme Court on direct appeal while others were raised in his state habeas petitions

7 to that court and summarily denied. In the case of summary denial, where the state court

8 decision is unaccompanied by an explanation, “[t]he habeas petitioner’s burden still must be met

9 by showing there was no reasonable basis for the state court to deny relief.” Richter, 562 U.S. at

10 98. The Supreme Court stated that “a habeas court must determine what arguments or theories

11 supported or ... could have supported, the state court’s decision; and then it must ask whether it

12 is possible fair-minded jurists could disagree that those arguments or theories are inconsistent

13 with the holding in a prior decision of this Court.” Id. at 101-03 (emphasis added). Petitioner

14 bears “the burden to demonstrate that there was no reasonable basis for the state court to deny

15 relief.” Walker v. Martel, 709 F.3d 925, 939 (9th Cir. 2013) (quoting Richter, 562 U.S. at 98).

16 “Crucially, this is not a de novo review of the constitutional question,” id., as “even a strong case

17 for relief does not mean the state court's contrary conclusion was unreasonable.” Id. (quoting

18 Richter, 562 U.S. at 102); see also Murray v. Schriro, 745 F.3d 984, 996-97 (9th Cir. 2014).

19 When reviewing the California Supreme Court's summary denial of a petition, this Court

20 must consider that the California Supreme Court's summary denial of a habeas petition on the

21 merits reflects that court's determination that:

22

[T]he claims made in th[e] petition do not state a prima facie case entitling the

23 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 will

24 also review the record of the trial ... to assess the merits of the petitioner's claims.

25

26 Pinholster, 563 U.S. 181 n.12 (quoting In re Clark, 5 Cal. 4th 750, 770 (1993)), superseded by

27 statute as stated in Briggs v. Brown, 3 Cal. 5 th 808 (2017); see also Johnson v. Williams, 568

28 U.S. 289, 300–01 (2013) (holding that even where the state court does not separately discuss a

24

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1 federal claim there is a presumption that that state court adjudicated the federal claim on the

2 merits); see also Richter, 562 U.S. at 99–100 (holding that “[§] 2254(d) does not require a state

3 court to give reasons before its decision can be deemed to have been adjudicated on the merits.”).

4 Accordingly, if this Court finds Petitioner has unarguably presented a prima facie case for

5 relief on a claim, the state court's summary rejection of that claim would be unreasonable.

6 Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir. 2004), overruled on other grounds by Murray v.

7 Schriro, 745 F.3d 984, 999-1000 (9th Cir. 2014), as recognized by Velasquez v. Ndoh, 824 Fed.

8 Appx. 498 (9th Cir. 2020); see also Nunes v. Mueller, 350 F.3d 1045, 1054-55 (9th Cir. 2003).

9 For any habeas claim that has not been adjudicated on the merits by the state court, the

10 federal court reviews the claim de novo without the deference usually accorded state courts under

11 28 U.S.C. § 2254(d)(1). Chaker v. Crogan, 428 F.3d 1215, 1221 (9th Cir. 2005); Pirtle v.

12 Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002). For example, claims denied solely on procedural

13 grounds are reviewed de novo. Vang v. Nevada, 329 F.3d 1069, 1072 (9th Cir. 2003). In such

14 instances, however, the provisions of 28 U.S.C. § 2254(e) still apply. Pinholster, 563 U.S. 185

15 (“Section 2254(e)(2) continues to have force where § 2254(d)(1) does not bar federal habeas

16 relief.”); Pirtle, 313 F.3d at 1167–68 (stating that state court findings of fact are presumed correct

17 under § 2254(e)(1) even if legal review is de novo).

18 According to the Ninth Circuit:

19

In a habeas corpus proceeding, we do not review a question of federal law

20 decided by a state court “if the decision of that court rests on a state law ground

that is independent of the federal question and adequate to support the judgment.”

21 Coleman v. Thompson, 501 U.S. 722, 729, 111 S. Ct. 2546, 115 L.Ed.2d 640

(1991). This doctrine “applies to bar federal habeas review when the state court

22 has declined to address the petitioner's federal claims because he f ailed to meet

state procedural requirements.” McKenna v. McDaniel, 65 F.3d 1483, 1488 (9th

23 Cir.1995). If a petitioner has procedurally defaulted, we do not review the claim

unless the petitioner “can establish cause and prejudice or that a miscarriage of

24 justice would result in the absence of our review.” Moran v. McDaniel, 80 F.3d

1261, 1270 (9th Cir.1996).

25

26 Vang, 329 F.3d at 1072.

27

Procedural default is an affirmative defense. Bennett v. Mueller, 322 F.3d 573,

28 585 (9th Cir.2003). Generally, the state must assert the procedural default as a

25

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defense to the petition before the district court; otherwise the defense is waived.

1 Franklin v. Johnson, 290 F.3d 1223, 1229 (9th Cir.2002). However, the district

court retains discretion to consider the issue sua sponte if the circumstances

2 warrant. Boyd v. Thompson, 147 F.3d 1124, 1128 (9th Cir.1998).

3 In Boyd, we recognized that the district court may, sua sponte, raise the issue of

procedural default when the default is obvious from the face of the petition and

4 when recognizing the default would “further the interests of comity, federalism,

and judicial efficiency.” Id.

5

6 Id., at 1073.

7 A state procedural rule is “adequate” if it is “clear, consistently applied, and well-

8 established at the time of the petitioner's purported default.” Id. (citing Calderon v. United States

9 Dist. Court, 96 F.3d 1126, 1129 (9th Cir.1996)).

10 A state procedural bar is “independent” if the state court explicitly invokes the procedural

11 rule as a separate basis for its decision. McKenna v. McDaniel, 65 F.3d 1483, 1488 (9th Cir.

12 1995). For a state law ground to be “independent,” it must not be interwoven with federal law.

13 See La Cross v. Kernan, 244 F.3d 702, 704 (9th Cir. 2001). A state court's decision is not

14 “independent” if the application of a state's default rule depends on a consideration of federal

15 law. Park v. California, 202 F.3d 1146, 1152 (9th Cir.2000). If the state court's decision fails “to

16 specify which claims were barred for which reasons,” we have held that the ambiguity serves to

17 defeat the independence of the state procedural bar. Valerio v. Crawford, 306 F.3d 742, 775 (9th

18 Cir. 2002).

19 V. PROCEDURAL BARS

20 As noted, certain of Petitioner’s claims or aspects thereof were denied by the California

21 Supreme Court as procedurally barred. As to those claims, Respondent has invoked the noted

22 independent state ground doctrine, pursuant to which a federal court will not review a question of

23 federal law decided by a state court “if the decision of that court rests on a state law ground that

24 is independent of the federal question and adequate to support the judgment.” Vang, 329 F.3d at

25 1069 (quoting Coleman v. Thompson, 501 U.S. 722, 729 (1991)).

26 Since “cause and prejudice” can excuse a procedurally defaulted claim, Smith v.

27 Baldwin, 510 F.3d 1127, 1139 (9th Cir. 2007) (citing Coleman, 501 U.S. at 750), and

28 “prejudice” essentially requires a merits analysis, the Court will proceed to the merits of claims

26

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1 found to be procedurally defaulted, and review them de novo if denied solely on procedural

2 grounds, without determining whether the state procedural default is adequate and independent

3 to bar relief in federal court. Id. (citing Coleman, 501 U.S. at 732-35); see also Franklin v.

4 Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002) (courts empowered to reach the merits if on their

5 face clearly not meritorious despite asserted procedural bar); Bell v. Cone, 543 U.S. 447, 451 n.3

6 (2005) (an application for habeas corpus may be denied on the merits even if unexhausted in

7 state court); Loggins v. Thomas, 654 F.3d 1204, 1215 (11th Cir. 2011) (relief may be denied on

8 the merits where petition is clearly not meritorious despite asserted procedural bar).

9 Under Martinez v. Ryan, 566 U.S. 1, (2012), the procedural default of a substantial claim

10 of ineffective assistance of trial counsel is excused where state law requires that all claims be

11 brought in the initial collateral review proceeding and counsel in that proceeding was ineffective.

12 See Ramirez v. Ryan, 937 F.3d 1230, 1241 (9th Cir. 2019). A substantial claim of ineffective

13 assistance of trial counsel is one which has “some merit.” Id. (citing Martinez, 566 U.S. at 14-

14 16). Conversely, an insubstantial claim of ineffective assistance of trial counsel “does not have

15 any merit or [ ] is wholly without factual support.” Id.

16 “Thus, to establish cause and prejudice in order to excuse the procedural default of his

17 ineffective assistance of trial counsel claim, Ramirez must demonstrate the following: (1) post-

18 conviction counsel performed deficiently; (2) there was a reasonable probability that, absent the

19 deficient performance, the result of the post-conviction proceedings would have been different,

20 Id.; and (3) the underlying ineffective-assistance-of-trial-counsel claim is a substantial one,

21 which is to say that the prisoner must demonstrate that the claim has some merit.” Ramirez, 937

22 F.3d at 1242.

23 To the extent claims already adjudicated were later denied on procedural grounds, the

24 Court finds these claims remain ripe for federal adjudication. See e.g., Cone, 556 U.S. 449, 466-

25 67 (2009); see also Forrest v. Vasquez, 75 F.3d 562, 564 (9th Cir. 1996) (applying look through

26 doctrine to Waltreus bars); Kim v. Villalobos, 799 F.2d 1317, 1319 n.1 (9th Cir. 1986) (applying

27 look through doctrine to Miller bars).

28

27

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1 VI. PRELIMINARY MATTERS

2 The Court takes judicial notice of the certified record on appeal to the California Supreme

3 Court, all documents on file in the California Supreme Court in the case of People v. Ward

4 Francis Weaver, Jr., California Supreme Court Case No. S004665 as lodged with this Court, and

5 all declarations, witness statements, and records filed on Petitioner’s behalf in his first state

6 habeas corpus proceeding before the California Supreme Court, In re Ward Francis Weaver, Jr.,

7 Case No. S073709, and in his second state habeas corpus proceeding before the California

8 Supreme Court, In re Ward Francis Weaver, Jr., Case No. S115638 (see Lod. Doc. Nos. 7 & 23,

9 respectively).

10 VII. REVIEW OF CLAIMS

11 A. Claims Alleging Trial and Execution Incompetence

12 1. Claim 3

13 Petitioner alleges that he was incompetent to stand trial due to mental and intellectual

14 impairments and/or disabilities that left him unable to understand the proceedings and assist

15 counsel in the defense, and to make valid waivers, violating his rights under the Fourth, Fifth,

16 Sixth, Eighth and Fourteenth Amendments. 4 (ECF No. 107 at 50-61.)

17 a. State Court Direct and Collateral Review

18 The Claim was presented to the California Supreme Court on direct appeal (Lod. Doc. 1

19 at 224-51), and denied on the merits, as follows:

20

On September 29, 1982, before defendant was arraigned, his defense counsel

21 expressed a doubt as to defendant's present competence. The trial court agreed

and appointed two psychiatrists, Dr. Paul Cutting and Dr. Francis Criswell, to

22 examine defendant. The proceedings were suspended until the two doctors could

examine defendant and file their reports with the court. On October 27, 1982, the

23 court was in possession of the reports of both doctors. Both found defendant was

legally competent. Defense counsel and the prosecutor submitted the question of

24 defendant's competence on these two psychiatric reports, and the trial court found

defendant competent. The proceedings then resumed.

25

Defendant contends the failure to hold a full-blown adversarial hearing on the

26 question of his competence deprived him of due process and requires that we

vacate his convictions. Essentially, defendant claims counsel could not waive a

27

4 Petitioner states that he incorporate the factual allegations and evidentiary support set out in Claims 2, 4, 5, 6, 7, 8,

28 9 and 11. (ECF No. 107 at 50-51; cf. Rule 2, Rules Following 28 U.S.C. § 2254.)

28

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full jury trial with live witnesses. We rejected this precise claim in People v.

1 McPeters (1992) 2 Cal.4th 1148, 1169 [9 Cal.Rptr.2d 834, 832 P.2d 146]:

“Section 1368 entitles defendant to a 'hearing' on the issue of competence and he

2 received one. Although defendant's counsel, for understandable reasons, elected

to waive certain available incidents of the hearing procedure, i.e., the right to jury

3 trial and the rights to present oral testimony and to confront and cross-examine

witnesses, defendant presented evidence and received an independent judicial

4 determination of his competence to stand trial based on the stipulated record.

[Citation.] [¶] Defendant cites no authority holding that submission to the court of

5 the issue of competence to stand trial based on psychiatric reports is per se

unconstitutional or a violation of statute.”

6

7 Weaver, 26 Cal. 4th at 903.

8 The Claim was presented to the California Supreme Court in Petitioner’s first state

9 habeas petition (Lod. Doc. 7 at 407-21) as ineffective assistance of counsel, and summarily

10 denied on the merits (Lod. Doc. 8).

11 b. Legal Standard

12 (i) Trial Incompetence – Substantive Due Process

13 A criminal defendant has a constitutional due process right not to be tried or convicted

14 while incompetent to stand trial. Pate v. Robinson, 383 U.S. 375, 378 (1966); accord Medina v.

15 California, 505 U.S. 437, 439 (1992). He may not waive his right to counsel or plead guilty

16 unless he does so “competently and intelligently[.]” Johnson v. Zerbst, 304 U.S. 458, 468

17 (1938); accord Godinez v. Moran, 509 U.S. 389, 396 (1993). This right assures that a defendant

18 has: (1) a rational, as well as a factual, understanding of the nature of the proceedings against

19 him; and (2) the present ability to consult with his lawyer with a reasonable degree of rational

20 understanding and to assist with the preparation and presentation of his defense. See Drope v.

21 Missouri, 420 U.S. 162, 171–72 (1975) (quoting Dusky v. United States, 362 U.S. 402 (1960)).

22 Protecting this right is “fundamental to an adversary system of justice.” Id. at 172.

23 The trial or conviction of a person who is legally incompetent is a substantive due

24 process violation. Cooper v. Oklahoma, 517 U.S. 348, 354 (1996); see also Maxwell v. Roe, 606

25 F.3d 561, 568 (9th Cir. 2010) (“It is undisputed that the conviction of an accused person while he

26 is legally incompetent violates due process.”) (quoting Robinson, 383 U.S. at 378).

27 “[T]he standard for competence to stand trial is whether a defendant has sufficient

28 present ability to consult with his lawyer with a reasonable degree of rational understanding and

29

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1 has a rational as well as factual understanding of the proceedings against him.” Moran, 509 U.S.

2 at 396 (citing Dusky, 362 U.S. at 402); see also Clark v. Arnold, 769 F.3d 711, 729 (9th Cir.

3 2014). “It has long been accepted that a person whose mental condition is such that he lacks the

4 capacity to understand the nature and object of the proceedings against him, to consult with

5 counsel, and to assist in preparing his defense may not be subjected to a trial.” Anderson v.

6 Gipson, 902 F.3d 1126, 1133 (2018) (citing Drope, 420 U.S. at 171).

7 A “substantive” competency claim focuses on whether the defendant was actually

8 incompetent at trial. Boyde v. Brown, 404 F.3d 1159, 1165 (9th Cir. 2005). “Even where the

9 evidence before the trial judge was insufficient to raise a good faith doubt with respect to

10 Steinsvik's competency, he would still be entitled to relief if it now appears that he was in fact

11 incompetent.” Steinsvik v. Vinzant, 640 F.2d 949, 954 (9th Cir. 1981) (citing Zapata v. Estelle,

12 588 F.2d 1017, 1021 (5th Cir. 1979)).

13 Petitioner bears the burden of proof by a preponderance of the evidence. Hayes v.

14 Woodford, 301 F.3d 1054, 1078 n.28 (9th Cir. 2002) (citing Simmon v. Blodgett, 110 F.3d 39,

15 41 (9th Cir. 1997)) (rehearing en banc Hayes v. Brown, 399 F.3d 972 (9th Cir. 2005)) (panel

16 decision reversed on other grounds).

17 Trial incompetency, if demonstrated, is structural error not amenable to harmless error

18 analysis under Brecht, but rather necessitating automatic reversal. See United States v. Walters,

19 309 F.3d 589, 593 (9th Cir. 2002) (quoting Neder v. United States, 527 U.S. 1, 7 (1999)).

20 c. Analysis

21 Petitioner argues that during his trial from September 1984 to April 1985, he suffered

22 major mental illnesses or vulnerabilities and brain dysfunction, and their attendant physical and

23 mental symptoms, leaving him incompetent for trial. (ECF No. 107 at 51; ECF No. 210 at 51);

24 see also Penal Code § 1367; Boag v. Raines, 769 F.2d 1341, 1343 (9th Cir. 1985) (habeas court

25 may consider facts creating a real and substantial doubt as to petitioner’s competency, even if

26 those facts were not presented to the trial court); Chavez v. United States, 656 F.2d 512, 518 (9th

27 Cir. 1981) (“Trial courts must assess a defendant's competence with specific reference to the

28 gravity of the decisions the defendant faces.”) (citing de Kaplany v. Enomoto, 540 F.2d 975, 985

30

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1 (9th Cir. 1976)). He argues that numerous mental impairments detrimentally affected his ability

2 to rationally understand the proceedings against him or rationally aid and assist counsel at trial

3 because he could not: (1) understand the true nature of the charges brought against him; (2) assist

4 counsel in the preparation of his defense; (3) understand the nature and object of the legal

5 proceedings; (4) understand the nature and impact of the testimony and evidence brought against

6 him; (5) make knowing and intelligent waivers of his constitutional rights; and (6) exercise his

7 constitutional rights, including his right to effective assistance of counsel and right to cross

8 examine witnesses.” (ECF No. 210 at 47.)

9 However, the state supreme court reasonably could find Petitioner failed to demonstrate

10 by a preponderance of the evidence that he was incompetent to stand trial, as discussed below.

11 (i) Competency Determination at Arraignment

12 Petitioner discounts the competency determination made at the time of his arraignment.

13 He argues the court appointed experts, Drs. Paul Cutting and Francis Criswell, in their October

14 1982 reports, did not consider evidence of his psychosocial history, and that his psychotic

15 symptoms were then masked by the antidepressant Mellaril. (See CT, Confidential Records, at

16 8-12, 13-20; ECF No. 202-1 at 227-35.) He also argues the state law requirement that a

17 defendant’s incompetency result from “mental disorder or developmental disability” conflicts

18 with the clearly established federal law. (See e.g., ECF No. 211 at 27); Penal Code § 1367.

19 A state court's determination of a defendant's competence is entitled to a presumption of

20 correctness on habeas corpus review, Demosthenes v. Baal, 495 U.S. 731, 735 (1990) (per

21 curiam); Vargas v. Lambert, 159 F.3d 1161, 1168 (9th Cir.1998), and petitioner has the burden

22 of presenting clear and convincing evidence rebutting this presumption. 28 U.S.C. § 2254(e)(1).

23 The record reflects that during arraignment, on September 29, 1982, the Kern County

24 Superior Court, based on its observation of Petitioner’s appearance and information provided by

25 Lead Counsel, declared a doubt as to Petitioner’s competence for trial. (RT Sept. 29, 1982, at 2-

26 4; CT 206-208.) The court then suspended proceedings and at the suggestion of and with the

27 agreement of Counsel, appointed two experts, Drs. Paul Cutting and Francis Criswell, to

28 examine Petitioner, and opine upon not only his competency, but his sanity. (See CT 206-208;

31

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1 CT, Confidential Records, at 8-12, 13-20.) On October 27, 1982, upon reviewing the reports of

2 these experts opining competency for trial, the trial court declared that Weaver was competent to

3 stand trial and reinstated the criminal proceedings. (RT Oct. 27, 1982, at 3; see also CT 209.)

4 Here, the state supreme court reasonably could find Petitioner failed to impeach or

5 demonstrate a basis for discounting the pretrial competency reports and determination.

6 (A) Failure to Hold a Formal Competency Hearing

7 Petitioner argues the trial court erred by failing to hold a formal pretrial competency

8 hearing. (ECF No. 107 at 53, 60-61; ECF No. 210 at 48.)

9 However, the state supreme court reasonably could find Petitioner did not show real and

10 substantial evidence that a formal competency hearing at arraignment was required or necessary.

11 Petitioner does not provide state or federal authority that submission on the experts’

12 reports was improper, or that an evidentiary hearing was required. See Penal Code § 1367;

13 Dusky, 362 U.S. 402.

14 Counsel submitted the issue of competence to stand trial on court-ordered psychiatric

15 reports of Drs. Paul Cutting and Francis Criswell, who found him competent for trial.5 (See CT,

16 Confidential Records, at 8-12, 13-20); see also Weaver, 26 Cal. 4th at 903.) Petitioner did not

17 challenge the qualifications or credibility of these experts. Both experts based their findings and

18 opinions on professional standards, their review of the noted psychosocial records and materials,

19 and their respective examinations of Petitioner. (See CT, Confidential Records, at 8-12, 13-20;

20 see Baal, 495 U.S. at 735 (state court's determination petitioner was competent was supported by

21 record, including opinions of three psychiatrists); Williams v. Woodford, 384 F.3d 567, 608-09

22 (9th Cir. 2004) (“We accord substantial weight to Dr. Siegel's contemporaneous opinion that

23 [petitioner] did not suffer from a mental defect, and to the other evidence before the state trial

24 court that suggested that [petitioner] was competent to stand trial.”).

25 Petitioner’s suggestion Drs. Cutting and Criswell were uninformed or incorrectly

26

Respondent contends this Claim is not cognizable because it creates and retroactively applies a “new rule” of

5

27 constitutional law under Teague v. Lane, 489 U.S. 288 (1989). Respondent advances this argument as to other

Claims as well. Unless otherwise noted, the Court declines to a ddress Respondent’s Teague arguments where the

28 Claim lacks merit.

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1 informed as to his use of Mellaril belies the noted record, as discussed herein. Cf. Moran v.

2 Godinez, 57 F.3d 690, 695 (9th Cir. 1994), superseded by statute as stated in In re Gonzales, 623

3 F.3d 1242 (9th Cir. 2010), reversed on other grounds by Ryan v. Gonzales, 568 U.S. 57 (2013) (a

4 reasonable jurist should have entertained a competency doubt where defendant was taking

5 multiple medications including as anti-anxiety and sedative, stated his desire to plead guilty and

6 die, and had recently attempted suicide).

7 Petitioner’s further argument that a hearing was necessary to develop facts surrounding

8 Second Counsel’s statement and the finding of Drs. Cutting and Criswell that Petitioner was

9 competent for trial only if assisted by counsel reasonably could be seen as unpersuasive.

10 Particularly, Petitioner has not pointed to clearly established Supreme Court authority supporting

11 the argument. Nor has he demonstrated how and why development of such matters at a formal

12 hearing would provide a basis to question or discount the findings and opinions of Drs. Cutting

13 and Criswell. See Williams, 529 U.S. at 386 (habeas relief is available when a state-court

14 decision “was based on an unreasonable determination of the facts in light of the evidence

15 presented in the State court proceeding.”).

16 As Respondent observes, “[a] state court’s decision not to hold an evidentiary hearing

17 does not render its fact-finding process unreasonable so long as the state court could have

18 reasonably concluded that the evidence already adduced was sufficient to resolve the factual

19 question.” (Id., citing Hibbler, 693 F.3d at 1147; Ayala v. Chappell, 829 F.3d 1081, 1105 (9th

20 Cir. 2016) (a state court's decision may be based on an “unreasonable determination of the facts,”

21 28 U.S.C. § 2254(d)(2), if “the [fact-finding] process employed by the state court [was]

22 defective,”).

23 Notably, at arraignment, Counsel did not argue in support of incompetence. See Medina

24 v. California, 505 U.S. 437, 450 (1992) (“[D]efense counsel will often have the best-informed

25 view of the defendant's ability to participate in his defense.”); Williams, 384 F.3d at 608 (“We

26 find especially relevant defense counsel's opinion that [petitioner] was competent to stand

27 trial.”); Hernandez v. Ylst, 930 F.2d 714, 718 (9th Cir.1991) ( “While the opinion of [defense]

28 counsel certainly is not determinative, a defendant's counsel is in the best position to evaluate a

33

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1 client's comprehension of the proceedings.”).

2 (B) Failure to Consider Psychosocial History Evidence

3 Petitioner argues that had Drs. Cutting and Criswell considered his habeas proffered

4 family and personal psychosocial history, they might have concluded differently. (See Claims 4,

5 5, 8, herein.)

6 The record reflects that Dr. Cutting reviewed 270 pages of reports and documents and

7 examined Petitioner on October 15, 1982. (See CT, Confidential Records, at 8.) Petitioner

8 provided Dr. Cutting with certain psychosocial background information regarding his family,

9 educational, and military history relating to abuse, poor academic performance, auditory

10 hallucinations of a male voice and female voice, regular employment including the use of drugs

11 and “speed” while working as a truck driver prior to and at the time of the capital crimes,

12 various traumatic injuries including his serious logging truck accident, and prior psychiatric

13 assessment. (Id. at 9.) Also, Petitioner told Dr. Cutting his mother meted out discipline by biting

14 him, the trauma of which played a role in his abusing his first and second wives. (Id. at 10.)

15 Dr. Cutting was aware Petitioner had a history of taking Mellaril and was then taking

16 Mellaril to prevent pacing and help him sleep. (Id.; see also ECF No. 209 at 45.)

17 Dr. Cutting diagnosed Petitioner with atypical psychosis and personality disorder and

18 found him competent for trial with the assistance of counsel, and sane at the time of the capital

19 crimes. (Id. at 11-12.)

20 The record reflects that Dr. Criswell reviewed 276 pages of records relating to the instant

21 crime and the separate Ventura County case including psychiatric evaluation and conviction

22 therein, and he examined Petitioner on October 18, 1982. (See CT Confidential Records, at 13.)

23 Dr. Criswell observed Petitioner was then mildly sedated with and had a history of taking

24 Mellaril, in doses as high as 600 mg. per day, while incarcerated. (Id. at 13, 18; see also ECF

25 No. 209 at 45.) Dr. Criswell observed no evidence of thought disorder or delusional thinking.

26 (Id. at 13-14.)

27 Petitioner also provided Dr. Criswell with psychosocial background information

28 consistent with that he provided to Dr. Cutting. (Id.)

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1 Dr. Criswell found Petitioner was not then or ever psychotic or insane, and diagnosed

2 him with a pathological personality and sexual sadism. (Id. at 19.) Particularly, Dr. Criswell

3 found Petitioner’s alleged auditory hallucinations to be unconvincing. (Id. at 19-20.) Dr.

4 Criswell found Petitioner competent to stand trial with the assistance of counsel. (Id.)

5 The state supreme court reasonably could find Petitioner’s proffered psychosocial

6 history, to the extent available in 1982 and not provided to Drs. Cutting and Criswell, was not a

7 basis to discount the findings and opinions of these arraignment experts, for the reasons

8 discussed in Claims 4, 5, and 8, post, and summarized here. (See also ECF No. 209 at 36, 41,

9 42, 46, 48.)

10 Petitioner’s proffer includes evidence of multi-generational and extended family mental

11 illness and neuropsychological impairment, schizophrenia, psychotic disorders, and seizure

12 disorders. (See e.g., ECF No. 210 at 51, citing 1SHCP Ex.’s 5-8, 54, 55, 154; see also RT 4552-

13 94, 4605-07; 5050-5123, 5310-11, 5497-5506.) However, neither Drs. Cutting and Criswell, nor

14 thirteen of the twenty-one other mental health experts testifying at trial found Petitioner to be

15 schizophrenic, psychotic, or suffering seizures, and none of the trial experts found Petitioner

16 incompetent for trial. (See e.g., CT, Confidential Records, at 8-12, 13-20.) Notably, neither Dr.

17 Cutting nor Dr. Criswell testified that they lacked information needed to opine on competency.

18 To the contrary, Dr. Cutting testified that he reviewed all the reports and information he needed

19 to inform his 1982 findings and opinion. (RT 6091; see also RT 6114-15.) Moreover, this Court

20 previously found Drs. Cutting and Criswell considered the same social history factors, i.e., child

21 abuse, wartime service in Vietnam, as other testifying trial experts. (ECF No. 209 at 48.)

22 Petitioner proffers evidence that he experienced direct and indirect physical, emotional,

23 and possibly sexual abuse at the hands of his parents, particularly his mother who facilitated his

24 co-dependent behavior, leaving him mentally ill. (See e.g., ECF No. 210 at 51 citing 1SHCP

25 Ex.’s 1, 2, 4, 8, 9, 11, 37 at ¶ 22, 142; RT 3895-99, 4695-97, 4728-29, 4784, 4812, 5050--5123,

26 5175, 5310-11 5300, 5497, 5509-14, 5526-99; 5818, 5925-33, 5995-97, 6087-6119, 6293, 6373-

27 76.) However, Drs. Cutting and Criswell generally were aware of Petitioner’s allegedly abusive

28 upbringing, and his alleged oral and visual hallucinations relating to a male and female voice,

35

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1 and considered such in rendering their opinions. (See CT, Confidential Records, at 8-12, 13-20.)

2 Petitioner proffers evidence of alcohol and drug abuse during his military deployment to

3 Vietnam and related Post Traumatic Stress Disorder (“PTSD”) allegedly leaving him with mental

4 and behavioral problems including episodes of schizophrenia, psychotic and personality

5 disorders, attention deficits and impaired abstract thinking. (See e.g., ECF No. 210 at 52-53

6 citing the testimony of Dr. J. Shonkwiler (RT 5126-49); Dr. B. Wittlin (RT 5596-5610); Dr. C.

7 Donahoe (RT 5673-5702); Dr. J. Wilson (RT 5814-5881, 5882-5911); .Dr. H. Kormos (RT

8 5929-45); see also 1SHCP Ex.’s. 36 (declaration of state habeas defense expert Watson), 37

9 (declaration of state habeas defense expert Foster); non-expert mental state evidence (1SHCP

10 Ex.’s 1, 11, 12, 13, 14, 15, 102, 124, 126, 143, 155, 157, 165); and additional mental state

11 evidence (RT 3922-23, 3955, 4072-73, 5296-5315, 5818-5881.) Even so, Drs. Cutting and

12 Criswell considered the extent, ebb, and flow of Petitioner’s then apparent mental and behavioral

13 problems, including his level of functioning including that after his return from Vietnam, he was

14 mostly employed, at one point owning his own trucking business. (Id.; RT 4073.)

15 Petitioner proffers evidence that he suffered organic brain injury, impairment and

16 neurocognitive deficits including evidence of a low-normal IQ, long-standing hearing loss,

17 problems processing verbal information and remembering things, possible partial complex

18 seizure disorder; he points in support to his poor academic performance and dropping out of high

19 school. (See e.g., ECF No. 210 at 52, citing 1SHCP Ex. 36 at ¶¶ 32, 36 [reflecting Petitioner’s

20 overall IQ of 95 and verbal IQ score of 85]; see also 1SHCP Ex.’s 1, 2, 46, 51, 51A, 57, 104,

21 110, 155; RT 4665-77, 4733, 5496, 5891.) Still, Drs. Cutting and Criswell considered

22 Petitioner’s mental capacity. Dr. Cutting found Petitioner to be of low average Intelligence

23 Quotient. (RT 6072.) Dr. Criswell found that Petitioner was of average intelligence. (RT 6365.)

24 Moreover, not all defense experts questioned Petitioner’s mental capacity. Dr. Chappell, a year

25 prior to Petitioner’s arraignment on the capital crimes, found him of average intelligence. (RT

26 4908.) Dr. Rose, a corrections department psychologist who examined Petitioner shortly after

27 the Ventura conviction, also found him of average intelligence. (RT 4972.)

28 Petitioner proffers evidence that he was addicted to amphetamines during his

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1 employment as a truck driver. (See e.g., ECF No. 210 at 54, citing 1SHCP Ex. 37 at ¶ 26; see

2 also 1SHCP Ex.’s 4, 11 at ¶ 11; RT 3923, 4072-74.) He proffers evidence that amphetamine

3 abuse can cause at least temporary psychosis. (RT 4907.) Even so, the state supreme court

4 reasonably could find Petitioner’s history of amphetamine abuse as a truck driver was not a basis

5 to discount the arraignment competency opinions of Drs. Cutting and Criswell. Notably, neither

6 Dr. Cutting nor Dr. Criswell found Petitioner to be actively psychotic at the time of arraignment.

7 Moreover, the proffer appears to concede that amphetamine remains in the system no longer than

8 72 hours. (RT 4876.)

9 Petitioner proffers evidence that he sought and received treatment for mental illness (see

10 e.g., RT 4702-03, 4724-41, 5517-5610; 5798-5800), including treatment with varying doses of

11 the antipsychotic Mellaril during the period 1981-1983 while incarcerated in state prison and

12 county jail prior to the capital trial (1SHCP Ex. 37 at ¶ 31; see also, RT 4863-82, 5070-71, 5117;

13 6372-73); when interviewed at San Quentin by the Kern County Sheriff’s Department (see e.g.,

14 ECF No. 210 at 56 citing RT 122-25, 144-46; RT 202-203, 211-12, 215-17); and while arraigned

15 on the capital charges (August 18, 1992 RT at 1-4; September 29, 1982 RT at 1-4), and evaluated

16 for competency by Drs. Cutting and Criswell during arraignment (see CT, Confidential Records,

17 at 8-12, 13-20; see also ECF No. 210 at 55-57; RT 6042-43, 6351-52; 1SHCP Ex.’s 60-61).

18 Still, the state supreme court reasonably could find the proffer not a basis upon which to discount

19 the arraignment competency opinions of Drs. Cutting and Criswell.

20 As to Mellaril, the record reflects that while at San Quentin in 1982, Petitioner was

21 prescribed 100 mg. of Mellaril daily as an antidepressant. (RT 1541-44; see also ECF No. 209 at

22 45.) Drs. Cutting and Criswell knew that Petitioner was taking Mellaril at the time of their

23 competency evaluations and discounted its effect other than mild sedation. (See CT,

24 Confidential Records, at 8-12, 13-20.) Notably, the record reflects Petitioner’s Mellaril was

25 discontinued by Kern County jail medical staff in 1983 upon their determination Petitioner no

26 longer needed it. (See CT Confidential Records at 58; see also RT 200, 3500-01; 1SHCP Ex. 37,

27 at ¶ 31; ECF No. 209 at 45.)

28 As to any pre-existing mental illness at the time of arraignment, Drs. Cutting and

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1 Criswell considered Petitioner’s prior psychological history including as related to the Ventura

2 proceeding. (See CT, Confidential Records, at 8-13.) For example, Dr. Chappell, who along

3 with Dr. Donaldson was appointed by the court in the Ventura proceeding to opine on

4 Petitioner’s sanity at the time of the Ventura crimes, examined him in August 1981 and found

5 him sane at the time of the May 1981 Ventura crimes. (RT 4894-98.) Dr. Donaldson likewise

6 found Petitioner sane at the time of the Ventura crimes. (RT 4926, 4942.) These Ventura

7 experts suspected Petitioner was malingering or faking some symptoms. (RT 4884, RT 4926.)

8 Particularly, Dr. Chappell observed that Petitioner was oriented and that his memory and

9 judgment were intact. (RT 4906).

10 At bottom, the state supreme court reasonably could find Petitioner has not shown any

11 failure by Drs. Cutting and Criswell to consider proffered evidence, to the extent available in

12 1982, as a basis to discount their findings and opinions. Especially so, as Drs. Cutting and

13 Criswell during their sanity phase testimony, did not suggest whether and how evidence

14 proffered after their 1982 opinions would have impacted those opinions, if at all.

15 (ii) Competency Following Arraignment and During Trial

16 (A) Petitioner’s Conduct and Demeanor

17 Petitioner argues his conduct and demeanor following arraignment and throughout trial

18 demonstrated trial incompetence. He argues the arraignment competency determinations of Drs.

19 Cutting and Criswell were over two years old by the time of trial and conflicted with Dr. Owre’s

20 noted courtroom observation during the sanity phase that Petitioner had decompensated. (See

21 e.g., RT 4808-16.) He argues that he began decompensating in the year prior to trial when Kern

22 County Jail personnel discontinued his Mellaril prescription and then placed him in a darkened

23 isolation cell. (See 1SHCP Ex. 37 at ¶ 31; RT 3499-3501, 3549-51; see also ECF No. 210 at 57;

24 ECF No. 214 at 24-26.) For example, he points to evidence that he became floridly delusional

25 while in the Kern County jail, including that: cellmates observed him talking to himself, crying,

26 and relieving himself in bed (RT 5716-21, 5723-27.) He points to evidence that during this time,

27 the male voice in his head directed that he kill himself. (See ECF No. 210 at 52-53; RT 5805-06,

28 6572-73, 6577-84.) Petitioner points to evidence that his guilt phase testimony, however lucid

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1 on its face, preceded by five weeks the noted decompensation into schizophrenia and psychosis

2 allegedly observed by Dr. Owre during the latter’s sanity phase testimony. (See ECF No. 214 at

3 23-24; RT 4815-22.)

4 But the state supreme court reasonably was unpersuaded that Petitioner’s mental state and

5 circumstances changed substantially following arraignment, preponderating to prima facie

6 incompetence by the time of trial.

7 The state supreme court reasonably could discount evidence Petitioner decompensated

8 while in the Kern County Jail prior to and during trial. Inmate testimony of isolated alleged

9 instances of odd behavior was subject to impeached during the sanity phase. (See Claims 4, 5,

10 8; see also ECF No. 209 at 39.) That court reasonably could find evidence that Petitioner was

11 only mildly sedated with Mellaril at the time of arraignment, and that continued administration

12 of the antipsychotic for that purpose ended at least a year before trial, insufficient evidence of

13 decompensation at trial. That court reasonably could find discontinuance of Mellaril by medical

14 staff at the Kern County jail, on ground Petitioner did not need the medication, militated against

15 decompensation during trial. (Id.) Petitioner himself told examining mental health experts that

16 apart from helping him sleep, Mellaril had no effect on him. (See e.g., RT 6151-52, 6284.) That

17 court reasonably could discount Dr. Owre’s sanity phase testimony of decompensation, for the

18 reasons discussed below. (See Claim 8, herein; ECF No. 209 at 42.)

19 Significantly, Petitioner’s guilt and penalty phase testimony was grounded in the factual

20 record, and appeared coherent, rational, oriented, responsive, appropriate relative to the questions

21 asked, and demonstrative of an ability to recall and recite events as they occurred. (See e.g., RT

22 3906-4141, 6977-81.) Petitioner apparently did not have problems understanding the

23 proceedings and his defense, as his noted testimony in aid of his defense suggests. While his

24 guilt phase persona contrasted markedly with the “madman” defense tactic in play during the

25 sanity phase, the state supreme court reasonably could find a tactical underpinning. (See e.g.,

26 ECF No. 209 at 61.)

27 Petitioner’s suggestion that his noted lucid and lengthy testimony at the guilt phase be

28 discounted because it occurred five weeks prior to Dr. Owre’s sanity phase observation of

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1 decompensation reasonably could be rejected. Petitioner fails to show changed circumstances

2 relevant to competency during the intervening five weeks, and Dr. Owre’s testimony itself was

3 reasonably discounted by the state court. (See Claims 4, 5, 8; ECF No. 209 at 42.) Moreover,

4 his sanity phase waivers of presence (during playing of a portion of the VESI videotapes) and

5 representation (by Lead Counsel in favor of representation by Second Counsel) reasonably could

6 be seen as voluntary, knowing, and intelligent upon consultation with Counsel and colloquy with

7 the trial court, and not otherwise suggestive of trial incompetence, for the discussed below. (See

8 Claims 4, 5, 8, 19; see also ECF No. 209 at 59; Weaver, 26 Cal. 4 th at 948-52, 965-67; RT

9 4986-88, 5822-24).6

10 Neither the trial court nor Counsel raised a doubt as to Petitioner’s competence to stand

11 trial. See Baal, 495 U.S. at 735; see also Sturgis v. Goldsmith, 796 F.2d 1103, 1109 (9th

12 Cir.1986) (“The defendant's demeanor and behavior in the courtroom can often be as probative

13 on the issue of his competence as the testimony of expert witnesses.”). Contrary to the

14 suggestion of defense state habeas expert, Dr. Foster, that the cessation of Mellaril well before

15 trial left Petitioner at high risk for becoming psychotic again (see 1SHCP Ex. 37 at ¶ 31),

16 Counsel found Petitioner cooperative and able to understand the proceedings with Counsel’s

17 assistance (RT 4854-58). Counsel believed Petitioner to be competent for trial. (See 1SHCP Ex.

18 34 at ¶ 30; see also Williams, 384 F.3d at 608 (defense counsel’s opinion is particularly relevant

19 to the determination of competency).

20 None of the trial experts opined that the cessation of Mellaril more than a year before trial

21 alone suggested a doubt as to, or manifested in trial competency. (See Claims 4, 5, 8; see also

22 ECF No. 209 at 78-82.) Although Petitioner suggested he was glad when Mellaril was

23 discontinued because “when he talks, he knows that it is him talking and not the medication”

24 (CT Confidential Records at 58), he told Dr. Matychowiak that Mellaril helped him sleep, but

25 had no effect on him otherwise (RT 6151-52).

26 6 In this Claim and others asserted herein, Petitioner seeks relief in relation to a Claim or allegation previously

denied by the Court. (See ECF Nos. 162 & 209.) To the extent construed as a request for reconsideration, the

27 request is denied for lack of support in the record, for the reasons stated. See Fed. R. Civ. P. 60(b); Harvest v.

Castro, 531 F.3d 737, 749 (9th Cir. 2008); Local Rule 230(j).

28

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1 Petitioner also points to evidence that at least two jurors at this trial noted his unkempt

2 appearance and suggested concern for their safety. (See ECF No. 210 at 61 citing 1SHCP Ex.’s

3 17 & 18 [Decl.’s of Jurors Rice and Haney, respectively].) However, the jurors’ suspicions that

4 during the sanity phase, Counsel made Petitioner look dirty and wild (id.), to the extent

5 admissible, reasonably could be seen by the state supreme court to acknowledge Counsel’s

6 express trial tactic of presenting a madman defense (see 1SHCP Ex. 34 at ¶ 11; ECF No. 209 at

7 61), rather than evidence of Petitioner’s trial incompetence.

8 At bottom, the noted record of Petitioner’s post-arraignment conduct and demeanor

9 reasonably suggested that he remained competent for trial, that: he understood and did not

10 disrupt courtroom proceedings, responded appropriately during testimony and colloquy with the

11 trial court, and rationally conferred with Counsel and participated in his defense. To the extent

12 Second Counsel observed any problems with Petitioner’s comprehension of what was going on

13 in the proceeding, her explanations ultimately appeared to resolve the matter. (See RT 4857-58.)

14 (B) Findings and Opinions of Mental Health Experts at Trial

15 Petitioner argues mental health expert findings and opinions presented at trial

16 demonstrated trial incompetence.

17 However, the state supreme court reasonably could find the weight of the expert opinion

18 not to preponderate to prima facie trial incompetence. While all eighteen experts who examined

19 Petitioner prior to and during trial found him to present personality disorder, and six of those

20 experts also found him to present more severe symptoms of PTSD, psychosis, and schizophrenia,

21 none of the trial experts opined that Petitioner was incompetent to stand trial, as discussed below.

22 (1) Petitioner’s Mental Health History

23 The seven mental health experts who testified to Petitioner’s family and personal mental

24 health history found that he was predisposed to mental illness, and presented with mental illness

25 that fell short of psychosis, schizophrenia, and PTSD. None opined incompetence.

26 Dr. Albert Raitt, a staff psychiatrist and director of the Butte County Mental Health

27 Program, testified that Petitioner’s family history included schizophrenia, predisposing Petitioner

28 to schizophrenia. (RT 4552-72.) Dr. Raitt noted that schizophrenia can be episodic. (RT 4600-

41

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1 01.)

2 Dr. Robert Gardner, along with Drs. Alfred Owre, and Jack Tolchin testified as to their

3 evaluation of Petitioner in connection with his May 2, 1977 Humboldt County felony conviction

4 for assault with a deadly weapon against Bonnie Brown, an enhancing conviction admitted by

5 Petitioner at the capital trial. (CT 1630.). Dr. Gardner, a psychiatrist, evaluated Petitioner in

6 1977, found him of average to low average intelligence (RT 4737), depressed (RT 4720) and

7 possibly homicidal (RT 4723, 4745), and opined that Petitioner presented a probable psychotic

8 depressive reaction relating to an underlying psychiatric disorder (RT 4746). Significantly, Dr.

9 Gardner did not find hallucinations or delusions or PTSD or schizophrenia. (RT 4753, 4770-71.)

10 Dr. Alfred Owre, a psychiatrist, opined that when he examined Petitioner in 1977-1978,

11 he presented without psychiatric symptoms apart from distorted relationships with women. (RT

12 4788.) Dr. Owre, at that time, diagnosed Petitioner with passive aggressive personality with

13 depressive and sadomasochistic features, with aggressive sexuality toward adult women. (RT

14 4789.) Dr, Owre then found Petitioner of high normal intelligence (RT 4813), and free of

15 hallucinations or delusions or mental disorders (RT 4814). Although Dr. Owre, during his 1985

16 sanity phase testimony, observed Petitioner to present a chronic undifferentiated schizophrenic

17 condition, possibly due to discontinuance of antipsychotic medication (RT 4815-20), (RT 4817-

18 20), the trial court and state supreme court reasonably found his mere in-court observations an

19 insufficient basis upon which to raise a doubt about competency. (See Claims 4, 5, 8; ECF No

20 209 at 42); see also Weaver, 26 Cal. 4th at 953-54.

21 Particularly, as the trial court noted, Dr. Owre had not personally examined Weaver since

22 1977, and his professional observations of Petitioner’s mental state were limited to ninety

23 minutes in the courtroom. (RT 4854-55.) The record shows that Counsel and the prosecutor

24 stipulated to the trial court’s discounting of Dr. Owre’s volunteered opinion that Petitioner was

25 then suffering symptoms of schizophrenia. (CT 1510.) Relatedly, this Court, in its prior order

26 denying Claims 8 and 9, found that the state supreme court was not unreasonable in denying

27 relief on Petitioner’s allegation that counsel provided ineffective assistance by failing to request

28 a second competency hearing mid-trial after Dr. Owre’s testimony. (ECF No. 214 at 26 n.3,

42

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1 citing ECF No. 209 at 42.)

2 Dr. Jack Tolchin, a psychologist, examined Petitioner in 1978, and opined that Petitioner

3 presented a passive aggressive personality with sadomasochistic features or depressive features

4 or both, and a personality disorder which was then in remission. (RT 4825, 4832, 4849.) Dr.

5 Tolchin did not find Petitioner psychotic (RT 4850).

6 Dr. George Chappell, a psychiatrist, along with psychologist Dr. Theodore Donaldson,

7 was appointed by the court in the Ventura County proceeding to opine on Petitioner’s sanity at

8 the time of those crimes. (RT 4859-63.) Dr. Chappell examined Petitioner in August 1981. (RT

9 4859-63.) Dr. Chappell noted that Petitioner claimed he was then daily taking 600 mg of

10 Mellaril, but showed no effects thereof. (RT 4863-64.) Petitioner also claimed a history of

11 amphetamine use. (RT 4876.) Dr. Chappell found Petitioner of average intelligence (RT 4908),

12 depressed, and possibly malingering or faking some symptoms (RT 4884). Dr. Chappell

13 diagnosed Petitioner with adjustment disorder with depression. (RT 4886.) Dr. Chappell

14 concluded that Petitioner was sane at the time of the May 1981 Ventura County crimes. (RT

15 4894.)

16 Dr. Donaldson examined Petitioner in July 1981. (RT 4915.). Dr. Donaldson noted

17 Petitioner might be fabricating his alleged auditory hallucinations and exaggerating other

18 symptoms. (RT 4924-26.) He observed that Petitioner was “very clear and articulate” during

19 conversation. (RT 4941.) Dr. Donaldson opined that Petitioner was sane at the time of the

20 Ventura crimes. (RT 4925.) Dr. Donaldson diagnosed Petitioner with mixed personality

21 disorder and depressive neurosis with a history of amphetamine abuse. (RT 4926.) Dr.

22 Donaldson did not find Petitioner to be schizophrenic. (RT 4926.) Dr. Donaldson found

23 Petitioner’s 1982 interview with detectives Johnson and Davis regarding the capital crimes,

24 unavailable to him at the time of his 1981 opinion, was nonetheless consistent therewith. (RT

25 4948-49.)

26 Dr. Rolland Rose, a corrections department psychologist, evaluated Petitioner in late

27 1981, shortly after his conviction on the Ventura County crimes, found him of average

28 intelligence (RT 4963-72), and diagnosed him with a personality disorder, passive-aggressive

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1 personality with schizoid feature and sexual sadism (RT 4974) and intense hostility toward

2 women (RT 4976). Dr. Rose found no evidence of organic brain damage. (RT 4976.)

3 (2) Petitioner’s Trial Defense Experts

4 The seven mental health experts retained for Petitioner’s sanity phase defense, all found

5 him to present with personality disorder or PTSD, six found evidence of schizophrenia, and three

6 found Petitioner insane at the time of the capital crimes. Still, none of these experts found

7 Petitioner incompetent, as discussed below.

8 Dr. Jack Shonkwiler, a psychiatrist then on probation with the California Board of

9 Medical Quality Assurance and practicing under a restricted license following a felony

10 conviction (RT 5021, 5156-57), examined Petitioner for sanity in August 1983 (RT 5026). Dr.

11 Shonkwiler noted Petitioner’s predisposition to schizophrenia based on his family history (RT

12 5092), and that Petitioner claimed he was then taking 25mg of Mellaril three times a day (RT

13 5070). Dr. Shonkwiler diagnosed Petitioner with a psychopathic personality disorder (RT 5169),

14 paranoid schizophrenia and PTSD (RT 5067, 5148). Dr. Shonkwiler found Petitioner insane at

15 the time of the capital crimes (RT 5148, 5192, 5232), manifesting an irresistible impulse and

16 diminished capacity (RT 5192, 5232). However, Dr. Shonkwiler conceded that his expert report

17 and addendum thereto did not consider Petitioner’s noted guilt phase testimony. (RT 5153.)

18 Dr. K. Edward Dietiker, a psychologist, examined Petitioner for sanity in September

19 1983. (RT 5437.) Dr. Dietiker observed that Petitioner exaggerated his fears and anxieties. (RT

20 5287.) Dr. Dietiker diagnosed Petitioner with a psychosis (RT 5290), and paranoid

21 schizophrenia (RT 5293, 5427). Dr. Dietiker suggested that under certain circumstances,

22 Petitioner would have difficulty conforming with the law. (RT 5429.)

23 Dr. Kathe Lundgren, a clinical psychologist, examined Petitioner for sanity in August

24 1983. Dr. Lundgren suggested that Petitioner may be faking some of his symptoms. (RT 5895-

25 96.) Dr. Lundgren found Petitioner to present a severe personality disorder (RT 5356), with

26 symptoms of chronic undifferentiated schizophrenia (RT 5357). Dr. Lundgren diagnosed

27 Petitioner with chronic undifferentiated psychosis and psychopathic personality. (RT 5896.) Dr.

28 Lundgren, who suggested Petitioner was a danger to the public (RT 5361-62), had no opinion

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1 whether Petitioner was sane or insane at the time of the capital crimes (RT 5898-99).

2 Dr. Byron Wittlin, a psychiatrist, evaluated Petitioner for PTSD in August 1984. Dr.

3 Wittlin observed that Petitioner presented with insane and paranoid delusions (RT 5226-32),

4 insane thinking (RT 5537), and psychotic behavior (RT 5541). Dr. Wittlin suggested that

5 Petitioner was schizophrenic as early as the time he entered the Army in 1967. (RT 5598-99.)

6 Dr. Wittlin diagnosed Petitioner with PTSD. (RT 5610.)

7 Dr. Clyde Donahoe, a psychologist, evaluated Petitioner for PTSD in August 1984. He

8 testified, based upon his interview with Petitioner and his review of Petitioner’s military records,

9 that Petitioner saw combat in Vietnam (RT 5683), and suffered PTSD as a result (RT 5677-81,

10 5701, 5713).

11 Dr. Harry Kormos, a psychiatrist, examined Petitioner for PTSD during the sanity phase

12 in February 1985, and found him mentally ill (RT 5947). Dr. Kormos diagnosed Petitioner with

13 schizophrenia of the paranoid type and chronic PTSD. (Id.) Dr. Kormos testified that

14 schizophrenics can be functional at times, showing no signs of mental illness (RT 5948, 5954),

15 and that stress can cause the schizophrenia to become more apparent (5949). Dr. Kormos

16 concluded that Petitioner was insane at the time of the capital crimes. (RT 5959.)

17 Dr. John Wilson, a psychologist, evaluated Petitioner for PTSD in February 1985, during

18 the sanity phase. (RT 5798-5800.) Dr. Wilson observed Petitioner’s long standing history of

19 mental illness. (Id.) Dr. Wilson found Petitioner to present with paranoid schizophrenia, PTSD,

20 and mixed personality disorder. (RT 5800-01.) Dr. Wilson opined that Petitioner was insane at

21 the time of the capital crimes. (RT 5820.)

22 (3) Other Experts

23 The five non-defense team experts who testified at trial all found Petitioner to present

24 with personality disorder. Yet none of these experts found Petitioner insane or incompetent, as

25 discussed below.

26 As noted, psychiatrists Dr. Paul Cutting, and Dr. Francis Criswell evaluated Petitioner in

27 October 1982 for trial competence and sanity pursuant to appointment by the arraignment court.

28 Dr. Cutting testified at the sanity phase that Petitioner, in 1982, was fully oriented and responded

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1 appropriately, showing no memory difficulties. (RT 6046, 6062, 6351.) Dr. Cutting found

2 Petitioner to be of low-average intelligence. (RT 6072.) Dr. Cutting found Petitioner to present

3 with mental and emotional problems including atypical psychosis and schizoid personality

4 disorder. (RT 6047.) Dr. Cutting found Petitioner competent to stand trial (CT, Confidential

5 Records, at 11-12), and sane at the time of the capital crimes (RT 6048). Dr. Cutting testified

6 that his 1982 arraignment opinion was fully informed by the information then provided to and

7 considered by him. (RT 6090-91.)

8 Dr. Criswell testified at the sanity phase that Petitioner, in 1982, was oriented, responded

9 appropriately, and that notwithstanding claimed auditory and visual hallucinations, he did not

10 present any thought or psychic disorder or evidence of delusional thought. (RT 6353-54.) Dr.

11 Criswell stated that Petitioner indicated a history of psychiatric treatment (RT 6394) and claimed

12 he was then medicated, possibly with Mellaril (RT 6394-95). Dr. Criswell observed that while

13 Petitioner appeared mildly sedated, such sedation was not any “great handicap.” (Id.; see also

14 RT 6361.) Dr. Criswell found that Petitioner was of average intelligence. (RT 6365.) Dr.

15 Criswell found Petitioner’s claimed hallucinations to be unconvincing. (RT 6357, 6361; see also

16 RT 6395.) Dr. Criswell found no evidence of psychosis. (RT 6357, 6361.) Dr. Criswell

17 concluded Petitioner suffered from a personality disorder (id.), was competent to stand trial (CT,

18 Confidential Records, at 20), and was sane at the time of the capital crimes (RT 6357-58).

19 Psychiatrists Drs. Francis Matychowiak and Richard Burdick evaluated Petitioner for

20 sanity in April 1984, pursuant to appointment by the court following entry of Petitioner’s NGI

21 plea. (RT 6127-28, 6239-41.) Dr. Matychowiak reviewed background information including

22 copies of medical reports by Drs. Criswell, Cutting, Donaldson, Chappell, Lundgren, and

23 Shonkwiler, as well as Kern County Sheriff’s reports and Superior Court testimony. (CT

24 Confidential Reports at 21.) Petitioner stated at that time he was no longer taking Mellaril and

25 that he used to take 600 mg. daily. (Id. at 23.) Dr. Matychowiak found Petitioner to be oriented

26 and responsive (RT 6132), and of low-average intelligence (RT 6133). Dr. Matychowiak found

27 Petitioner to present a personality disorder with a mixture of paranoid and antisocial traits. (RT

28 6134; see also CT Confidential Reports at 26.) Dr. Matychowiak opined that Petitioner was sane

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1 at the time of the capital crimes. (Id.) Dr. Matychowiak did not find Petitioner to be suffering

2 PTSD. (RT 6209.)

3 Dr. Burdick reviewed the same materials as Dr. Matychowiak as well as psychological

4 evaluations by Mary Cholet M.S. and Will Powers, Jr., M.S. and K. Edward Dietiker, Ph.D.;

5 psychiatrist Dr. Gardner who evaluated Petitioner in relation to the Humboldt County

6 proceeding; Kern County Sheriff’s reports, and information on the capital crimes and Petitioner’s

7 prior offenses. (CT Confidential Reports at 28.) Petitioner told Dr. Burdick that he had taken

8 Mellaril in the past. (Id. at 33.) Dr. Burdick observed Petitioner’s statements that he was not

9 then taking Mellaril; that Mellaril did not help him other than assisting with sleep; and that he

10 did not desire to take Mellaril. (RT 6284.) Dr. Burdick found Petitioner to be of low-average

11 intelligence (RT 6241), with no problems concentrating. (RT 6303.) Dr. Burdick found that

12 Petitioner’s complaints of auditory hallucinations were not consistent with mental illness. (RT

13 4262-63.) Dr. Burdick found that Petitioner presented with antisocial personality disorder. (RT

14 6243; see also CT Confidential Reports at 37.) Dr. Burdick found unpersuasive Petitioner’s

15 contention that he blacked out during the killing of Levoy. (RT 6266.) Dr. Burdick found

16 Petitioner sane at the time of the capital crimes. (RT 6244; see also CT Confidential Reports at

17 37.)

18 Dr. Mary Cholet, a psychologist who was a registered psychological assistant at the time

19 she evaluated Petitioner for the defense in August 1983, testified for the People at trial. Dr.

20 Cholet found Petitioner possibly learning impaired. (RT 6507.) Dr. Cholet found no evidence of

21 brain damage (RT 6417-21, 6430), schizophrenia (RT 6430), or thought disorder (RT 6507). Dr.

22 Cholet found Petitioner to present an antisocial personality disorder with characteristics of

23 borderline personality disorder. (RT 6431.) Dr. Cholet discounted Petitioner’s claimed auditory

24 hallucinations, finding no evidence of hallucinations. (Id.) Dr. Cholet discounted the possibility

25 Petitioner suffered PTSD. (RT 6476.)

26 (C) Findings and Opinions of Mental Health Experts on State Habeas

27 Petitioner argues the findings and opinions proffered by his two state habeas experts, Dr.

28 Dale Watson and Dr. David Foster, preponderate to trial incompetence. Particularly, he points to

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1 the state habeas declaration of Dr. Foster, who examined Petitioner in September 1998, some

2 thirteen years after trial, and found Petitioner to be incompetent at the time of trial. (See 1SHCP

3 Ex. 37 at ¶¶ 7, 38; see also ECF No. 215 at 27, citing Taylor v. Davis, 164 F. Supp. 3d 1147,

4 1155 (N.D. Cal. 2016) (a diagnosis of paranoid schizophrenia coupled with suicide attempt and

5 institutionalization clearly raises a bona fide doubt that a defendant is competent for trial).)

6 Still, this Court previously observed the state supreme court reasonably could give

7 minimal weight to the habeas proffer opining trial incompetence. (ECF No. 209 at 44.) The

8 state supreme court reasonably could find Dr. Foster’s opinion of trial incompetence, the only

9 such opinion in the record, rendered nearly one and one-half decades after trial, not to be

10 preponderate evidence of prima facie trial incompetence given the weight of the undiscounted

11 opinions of the trial experts who contemporaneously examined Petitioner and did not find him

12 incompetent for trial. See Sully v. Ayers, 725 F.3d 1057, 1071 (9th Cir. 2013) (retroactive

13 determinations of incompetence generally are disfavored); Williams, 384 F.3d at 608; cf.

14 Sherwood v. Sherman, 734 F. App'x 471, 474 (9th Cir. 2018) (holding that district court erred in

15 rejecting psychologist's retrospective report regarding petitioner's competency to plead guilty

16 because report “was based wholly on evidence that was readily available to [counsel] at the time

17 of trial”). Notably, Dr. Chappell observed that one’s mental state is best evaluated when

18 proximal to the interview. (RT 4904-05.) .

19 Furthermore, Dr. Foster did not review trial transcripts (see 1SHCP Ex. 37, Appx. A),

20 and thus failed to reconcile his conclusions with Petitioner’s lucid and lengthy trial testimony,

21 and unremarkable courtroom demeanor, or otherwise point to manifestations of incompetence in

22 the trial court record. Significantly, state habeas expert Dr. Watson examined Petitioner in 1997

23 and did not opine trial incompetence (1SHCP Ex. 36 at ¶¶ 42-45). Moreover, not every person

24 diagnosed with schizophrenia is incompetent to stand trial. Taylor, 164 F. Supp. 3d at 1156; cf.

25 People v. Pennington, 66 Cal.2d 508, 519 (1967) (concluding that substantial evidence of

26 incompetence to stand trial existed whenever a mental health professional “who has had

27 sufficient opportunity to examine the accused, states under oath with particularity that in his

28 professional opinion the accused is, because of mental illness, incapable of understanding the

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1 purpose or nature of the criminal proceedings being taken against him or is incapable of assisting

2 in his defense or cooperating with counsel[.]”).

3 The Ninth Circuit Court of Appeals has stated that:

4

We also accord little weight to the competency assessments of [petitioner’s]

5 habeas corpus experts because they are based not upon medical reports

contemporaneous to the time of the preliminary hearings or trial, but upon

6 declarations submitted by [petitioner’s] friends and family and

neuropsychological testing conducted […] years after trial. We have previously

7 held that retrospective competency determinations, although disfavored, are

permissible when it is possible to make an accurate retrospective evaluation, for

8 example, by consulting contemporaneous medical reports. See Moran, 57 F.3d at

696. Without the benefit of such contemporaneous reports, the passage of time

9 and the difficulties inherent in evaluating the defendant's competence from a

written record reduce the likelihood of an accurate retrospective determination.

10 See Pate, 383 U.S. at 387, 86 S. Ct. 836 (concluding that no meaningful

retrospective competency determination could be made six years after trial).

11

[…]

12

Given the significant contemporaneous evidence of [petitioner’s] competence at

13 trial, supported by defense counsel's firm belief that [petitioner] was competent,

and the absence of persuasive evidence to the contrary, [petitioner] fails to

14 establish a violation of his right not to be tried and convicted while incompetent.

15

16 Williams, 384 F.3d at 609–10. The state supreme court reasonably could find the opinions of

17 experts rendered proximal to the capital crimes, could be weighted more heavily than opinions

18 provided more distal to the crimes. (See e.g., RT 4904-05.)

19 Additionally, the state supreme court reasonably could reject Petitioner’s suggestion the

20 state supreme court discounted Dr. Foster’s credibility based upon its unreasonable

21 determination of facts relating to the duration and extent of Petitioner’s treatment with Mellaril.

22 (See ECF No. 210 at 81-83, citing Earp v. Ornoski, 431 F.3d 1158, 1167, 1169-70 (9th Cir.

23 2005) (petitioner must have an opportunity to present live testimony so that the trier of fact can

24 judge credibility). The noted evidentiary record includes facts supporting Petitioner’s use of

25 Mellaril during the period 1981-1983, as stated by Dr. Foster. Petitioner’s suggestion the state

26 supreme court must have determined a shorter duration of medication with Mellaril and

27 thereupon discounted Dr. Foster’s credibility (see 1SHCP Ex. 37 at ¶ 31; ECF No. 214 at 20,

28 citing 1SHCP Ex. 36 at ¶¶ 7, 20; RT 5070, 6373), is at best only supposition.

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1 It follows that, “[g]iven the significant contemporaneous evidence of [Petitioner's]

2 competence at trial, supported by [Counsel’s] belief that [Petitioner] was competent, and the

3 absence of persuasive evidence to the contrary, [Petitioner] fails to establish a violation of his

4 right not to be tried and convicted while incompetent.” Williams, 384 F.3d at 610; Baal, 495

5 U.S. at 735; see also Vargas, 159 F.3d at 1168-69 (next friend failed to rebut state court's finding

6 petitioner was competent, which was “extremely well supported by expert opinions,

7 psychological testing, and [petitioner's] courtroom demeanor”).

8 (iii) Unconstitutionality of State Standard for Trial Competence

9 Petitioner argues that Penal Code section 1367, by requiring that a defendant’s

10 incompetence be attributable to “a diagnosed mental illness[,]” runs contrary to Dusky, Drope,

11 and Godinez, which do not require a diagnosed mental illness or disorder. (ECF No. 210 at 77-

12 81 and state cases cited therein; see also Penal Code §1367(a); see also Benn v. Lambert, 283

13 F.3d 1040, 1051 n.5 (9th Cir. 2002) (“The addition, deletion, or alteration of a factor in a test

14 established by the Supreme Court also constitutes a failure to apply controlling Supreme Court

15 law under the “contrary to” clause of AEDPA.”); see also Drope, 420 U.S. at 171-72. Petitioner

16 argues “it is reasonable to assume” the state supreme court rejected Claim 3 based upon

17 application of the noted heightened standard set out in Penal Code section 1367.

18 However, the state supreme court reasonably could find Petitioner failed to provide legal

19 authority supporting the argument section 1367 is contrary to clearly established federal law.

20 (See ECF No. 214 at 18-20, citing Hardy v. Chappell, 832 F.3d 1128, 1137 (9th Cir. 2016),

21 amended and superseded upon denial of rehearing by Hardy v. Chappell, 849 F.3d 803 (9th Cir.

22 2016) (California supreme court erred by employing a standard of review harsher than

23 Strickland).) Petitioner has not pointed to clearly established federal law precluding

24 consideration of whether trial incompetency resulted from a mental disorder or developmental

25 disability.7 As noted, the clearly established federal law requires that a person whose mental

26

At the time of Petitioner’s trial, Penal Code section 1367(a) provided that “A person cannot be tried or adjudged to

7

27 punishment while that person is mentally incompetent. A defendant is mentally incompetent for purposes of this

chapter if, as a result of mental disorder or developmental disability, the defendant is unable to understand the nature

28 of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner.”

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1 condition is such that he lacks the capacity rationally to understand the nature and object of the

2 proceedings against him, to consult with counsel, and to assist in preparing his defense, may not

3 be subjected to a trial. Anderson v. Gipson, 902 F.3d 1126, 1133 (2018) (citing Drope, 420 U.S.

4 at 171).

5 Petitioner has not proffered evidence that the state supreme court’s application of Penal

6 Code section 1367(a), to the facts and circumstances of his case, was contrary to or an

7 unreasonable application of the noted clearly established federal law. See Williams, 529 U.S. at

8 405, 413 (under § 2254(d)(1), the writ may issue only if the state-court adjudication resulted in a

9 decision that (1) arrives at a conclusion opposite to that reached by the Supreme Court on a

10 question of law or if the state court decides a case differently than this Court has on a set of

11 materially indistinguishable facts, or (2) identifies the correct governing legal principle from this

12 Court's decisions but unreasonably applies that principle to the facts of the prisoner's case).

13 Moreover, as Respondent observes, “the Missouri statute at issue in Drope required that a

14 defendant’s incompetence be the result of a “mental disease or defect.” (ECF No. 211 at 27,

15 citing Drope, 420 U.S. at 173.)

16 Particularly, Petitioner fails to demonstrate legally and factually why and how section

17 1367 limits the mental condition for trial incompetence under the clearly established federal

18 standard. See Moran, 509 U.S. at 396; Dusky, 362 U.S. at 402; Drope, 420 U.S. at 171.

19 Notably, the Ninth Circuit has repeatedly reviewed state court application of section 1367

20 without finding constitutional error. See e.g., Stanley v. Cullen, 633 F.3d 852, 862 (9th Cir.

21 2011); Huu Thanh Nguyen v. Garcia, 477 F.3d 716, 724-25 (9th Cir. 2007); Deere v. Cullen, 718

22 F.3d 1124, 1126 (9th Cir. 2013) (citing Dennis, v. Budge, 378 F.3d 880, 890 (9th Cir. 2004)

23 (“The question . . . is not whether mental illness substantially affects a decision, but whether a

24 mental disease, disorder or defect substantially affects the prisoner's capacity to appreciate his

25 options and make a rational choice.”).

26 d. Conclusions

27 A fair-minded jurist could find the state supreme court’s denial of the Claim was not

28 contrary to, or an unreasonable application of, clearly established federal law, as determined by

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1 the Supreme Court, or based on an unreasonable determination of the facts in light of the

2 evidence presented in the state court proceeding. 28 U.S.C. § 2254(d ). Petitioner has not

3 rebutted, by clear and convincing evidence, the presumption that the state supreme court’s

4 finding of competence was correct. 28 U.S.C. § 2254(e)(1).

5 Claim 3 shall be denied.

2. Claim 28

6

Petitioner alleges that his serious mental illness renders him ineligible for execution, such

7

that his capital sentence violates his rights under the Eighth and Fourteenth Amendments. 8 (ECF

8

No. 107 at 392-408.)

9

a. State Court Direct and Collateral Review

10

The Claim was presented to the California Supreme Court in Petitioner’s second state

11

habeas petition (Lod. Doc. 23 at 88-107), and summarily denied on the merits (Lod. Doc. 24).

12

b. Legal Standard

13

(i) Execution Incompetence

14

Execution of the mentally impaired fails to further any interest in retribution or

15

deterrence, and leads to unacceptable risk of wrongful execution, such that it violates the Eighth

16

Amendment. Atkins v. Virginia, 536 U.S. 304, (2002); Ford v. Wainwright, 477 U.S. 399,

17

(1986) (the federal Constitution “places a substantive restriction on the State’s power to take the

18

life of a mentally retarded offender”),

19

Execution of sixteen and seventeen-year-old offenders violates the [Eighth Amendment.

20

Roper v. Simmons, 543 U.S. 551 (2005).

21

c. Analysis

22

Petitioner argues that he is ineligible for execution, re-arguing his noted alleged serious

23

mental illness and relating impairments. He relies by analogy on clearly established

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