Allen v. Woodford

Volume 1 of 2

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CLARENCE RAY ALLEN,  No. 01-99011

Petitioner-Appellant, D.C. No.

v. CV-88-01123-FCD-

JEANNE S. WOODFORD, Warden, of  JFM

the California State Prison at San ORDER AND

Quentin, AMENDED

Respondent-Appellee.

 OPINION

Appeal from the United States District Court

for the Eastern District of California

Frank C. Damrell, District Judge, Presiding

Argued and Submitted

June 12, 2003—San Francisco, California

Filed May 6, 2004

Amended January 24, 2005

Before: Susan P. Graber, Kim McLane Wardlaw, and

Richard R. Clifton, Circuit Judges.

Opinion by Judge Wardlaw

941

ALLEN v. WOODFORD 945

COUNSEL

Michael Satris, Bolinas, California, and Michael Thorman,

Hayward, California, for the appellant.

Ward A. Campbell, Supervising Deputy Attorney General,

Sacramento, California, for the appellee.

ORDER

The Opinion filed on May 6, 2004 and appearing at 366

F.3d 823 (9th Cir. 2004), is amended as follows: On slip opin-

ion page 5831 insert the following language at the end of the

first paragraph:

We do not hold that humanizing, non-exculpatory

evidence can never be enough to establish prejudice.

Rather, we simply hold that the quality and quantity

of the particular evidence offered by Allen, in light

of the heinous nature of his crimes, does not estab-

lish prejudice.

The mandate shall issue forthwith.

With this amendment, the panel has voted unanimously to

deny the petition for rehearing and to reject the suggestion for

rehearing en banc.

The full court has been advised of the suggestion for

rehearing en banc and no active judge has requested a vote on

whether to rehear the matter en banc. Fed. R. App. P. 35.

946 ALLEN v. WOODFORD

The petition for rehearing is DENIED and the suggestion

for rehearing en banc is REJECTED. No subsequent petition

for rehearing or rehearing en banc may be filed.

OPINION

WARDLAW, Circuit Judge:

Clarence Ray Allen appeals the denial of his petition for

writ of habeas corpus by the United States District Court for

the Eastern District of California. He asserts numerous claims

of constitutional error in both the guilt and penalty phases of

his 1982 trial for the Fran’s Market triple-murder and related

conspiracy to murder.

The evidence of Allen’s guilt for the crimes of conviction

is overwhelming. His own testimony provided perhaps the

most incriminating evidence of that of the 58 witnesses who

testified over 23 days during his jury trial, which ended in

convictions for triple-murder and conspiracy to murder seven

people, and a judgment imposing a sentence of death. Just as

overwhelmingly plain, however, is that Allen’s representation

at the penalty phase of his trial fell below an objective stan-

dard of reasonableness. Trial counsel admits he did nothing to

prepare for the penalty phase until after the guilty verdicts

were rendered, and even then, in what little time was avail-

able, he failed sufficiently to investigate and adequately pre-

sent available mitigating evidence.

We must decide whether, if counsel had adequately investi-

gated, presented and explained the available mitigating evi-

dence, there is a reasonable probability that the result of

Allen’s penalty phase would have been a sentence other than

death. Having carefully and independently weighed the miti-

gating evidence, “both that which was introduced and that

which was omitted or understated,” Mayfield v. Woodford,

ALLEN v. WOODFORD 947

270 F.3d 915, 928 (9th Cir. 2001) (en banc), against the

extraordinarily damaging aggravating evidence, we are com-

pelled to conclude, as did the district court before us, that it

is not reasonably probable that even one juror would have

held out for a life sentence over death. Given that Allen had

just been convicted by his death-qualified jury of orchestrat-

ing — from jail — a conspiracy to murder seven people, and

succeeding in the actual killing of three, all to retaliate for

their prior testimony against him and to prevent future damag-

ing testimony, and that the potential evidence in mitigation

was neither explanatory nor exculpatory and was provided by

persons unaware of Allen’s numerous horrendous crimes or

who were otherwise impeachable, we must conclude that

there is no reasonable probability, i.e., “a probability suffi-

cient to undermine confidence in the outcome,” Strickland v.

Washington, 466 U.S. 668, 694 (1984), that the jury would

have reached a different result. We therefore affirm.

I. Background1

The “sordid events,” Allen, 42 Cal. 3d at 1236, underlying

this appeal were set in motion in June 1974, when Allen

decided to burglarize Fran’s Market in Fresno, California.

Ultimately, Allen was convicted of the burglary and related

first-degree murder of Mary Sue Kitts, the crime for which he

was serving a life sentence when he committed his current

crimes of conviction in an effort to silence the witnesses who

testified at the 1977 Fran’s Market/Kitts murder trial.

1

We derive much of this recitation of facts and proceedings from that

of the California Supreme Court in People v. Allen, 42 Cal. 3d 1222,

1236-47 (1986), and from our own independent review of the record.

Many of the relevant facts are undisputed, and the California Supreme

Court’s factual findings are adequately supported by the record.

948 ALLEN v. WOODFORD

A. The Fran’s Market Burglary and Murder of Mary Sue

Kitts

Allen had known the owners of Fran’s Market, Ray and

Frances Schletewitz, for more than a decade. To assist in the

burglary, Allen enlisted the help of his son Roger, as well as

Carl Mayfield and Charles Jones, employees in Allen’s secur-

ity guard business and frequent coconspirators in prior crimi-

nal pursuits.

On the night of the burglary, Roger Allen invited the

Schletewitz’s 19-year-old son, Bryon, to an evening swim-

ming party at Allen’s house. There, Bryon’s keys to Fran’s

Market were taken from his pants pocket while he was swim-

ming. Later in the evening, while Bryon was on a date

arranged by Allen with 17-year-old Mary Sue Kitts, son

Roger’s live-in girlfriend at the time, Allen, Mayfield, and

Jones used Bryon’s keys to burglarize his parents’ market.

They removed a safe from the market and divided the $500

in cash and over $10,000 in money orders found inside. With

help from his son Roger, his girlfriend Shirley Doeckel, Kitts,

and two others — Barbara Carrasco and her stepson Eugene

Leland (“Lee”) Furrow — Allen cashed the stolen money

orders at southern California shopping centers by using false

identifications. While the stolen money orders continued to be

cashed, Kitts contacted Bryon Schletewitz and tearfully con-

fessed to him that she had helped to cash the money orders

stolen from Fran’s Market by Allen.

Bryon confronted Roger Allen with this story, and Roger

admitted that the Allen family had burglarized the store.

Bryon, in turn, confirmed to Roger that Kitts had been the one

to confess the burglary to him. When Roger told his father of

Bryon’s accusation based on Kitts’s confession, Allen

responded that Bryon and Kitts would have to be “dealt with.”

Allen next told Ray and Frances Schletewitz that he had not

burglarized their store and that he loved Bryon like his own

son. He also threatened and intimidated the Schletewitzes,

ALLEN v. WOODFORD 949

however, by hinting that someone was planning to burn down

their house and by having Roger pay Furrow $50 to fire sev-

eral gunshots at their home one midnight.

Meanwhile, Allen called a meeting at his house and told

Jones, Mayfield, and Furrow that Kitts had been talking too

much and should be killed. Allen called for a vote on the issue

of Kitts’s execution. The vote was unanimous because those

present feared what would happen if they did not go along

with Allen’s plan. Allen had previously told his criminal

accomplices that he would kill snitches and that he had

friends and connections to do the job for him even if he were

in prison. He had also referred to himself as a Mafia hitman

and stated that the “secret witness program” was useless

because a good lawyer could always discover an informant’s

name and address. Allen kept a newspaper article about the

murder of a man and woman in Nevada, and claimed he had

“blown them in half” with a shotgun.

Allen thereafter developed a plan to poison Kitts by trick-

ing her into taking cyanide capsules at a party to be held at

Doeckel’s Fresno apartment. Allen sent Mayfield and Furrow

to get the cyanide and took some heavy stones from his house

to weigh down Kitts’s body, which was to be dumped into a

canal. He overruled Jones’s suggestion that Kitts merely be

sent somewhere until “things died down,” and he dismissed

Doeckel’s objection to having a murder committed in her

apartment. Shortly before the party began, Allen told Furrow

that if he refused to commit the killing, Allen could just as

easily get rid of two people as one.

Allen left Doeckel’s apartment shortly before Kitts arrived.

When Kitts arrived and refused to take the “pills” offered to

her, Mayfield and Jones called Allen. Allen told Furrow to

kill her one way or another because he just wanted her dead.

Later, when Kitts still would not take the cyanide pills, Allen

met Furrow outside the apartment and stressed that he “didn’t

care how it was done but do it.” Allen added that Furrow

950 ALLEN v. WOODFORD

would be killed if he tried to leave the apartment. When Fur-

row and Kitts were finally left alone, Furrow began to stran-

gle Kitts, only to be interrupted by a phone call from Allen

asking if he had killed her yet. When Furrow answered no,

Allen ordered him to “do it” and hung up. Furrow then stran-

gled Kitts to death. Warning Jones, Doeckel, and Furrow that

they were all equally involved in the murder, Allen had them

tie stones to Kitts’s wrapped-up body and, while he watched

for traffic, throw it into a canal.

After the murder, Allen threatened and bragged to his vari-

ous cohorts. To Carrasco, Allen said of Kitts that he had had

to “ride her up, wet her down and [feed] her to the fishes.”

When Mayfield asked how Furrow was doing, Allen

responded that he was “no longer in existence,” explaining

that it is easy to go to Mexico, get someone killed, and have

the body disposed of for only $50. Allen also told Shirley

Doeckel that Furrow was no longer around and repeated his

claim that he had killed a woman in Las Vegas. Allen had not

actually killed Furrow, however, and would later enlist his

help in the 1974 robbery of an elderly couple at their jewelry

store. About six months after the murder, when Mayfield

asked Allen if he was worried about others talking, Allen said

that he was not afraid, that “things would be taken care of”

if that happened, that he would have snitches killed, and that

he would take care of “secret witness” informers even if he

were imprisoned.

Allen told Jones and others that “talking was a spreading

disease and that the only way to kill it was to kill the person

talking.” Allen would say of his cohorts that “none of [these]

people talked” and that, if they did, “he would get them from

inside or outside prison.” When Jones’s home was burglarized

some time after the murder and Jones told Allen about the

burglary, Allen responded that the burglary showed how eas-

ily Jones could be reached. Allen later gave Jones a key that

fit his residence, and told him in front of his five-year-old son

ALLEN v. WOODFORD 951

that he knew Jones “would like his kids to grow up without

harm.”

Allen later brought in new employees, Allen Robinson and

Benjamin Meyer, and bragged to Meyer that he “had a broad

helping them who got mouthy so they had to waste her” and

that she “sleeps with the fishes.” He further warned Meyer,

“If you bring anybody in my house that snitches on me or my

family, I’ll waste them. There’s no rock, bush, nothing, he

could hide behind.” When Meyer asked what would happen

if Allen was arrested and could not make bail, Allen replied,

“You’ve heard of the long arm of the law before? Well don’t

underestimate the long arm of this Indian. I will reach out and

waste you.”

After holding meetings with his new employees and his son

Roger, Allen arranged for the group to rob a K-Mart store in

Tulare. Chastising Robinson for making mistakes, Allen told

Meyer, “We just might waste him,” and later replaced Robin-

son with Larry Green as his “inside man.” During an armed

robbery of a Visalia K-Mart in March 1977, Green shot a

bystander, and police arrested him along with Meyer and

Allen. Allen was tried and convicted in 1977 of robbery,

attempted robbery, and assault with a deadly weapon. His

arrest also led to his second 1977 trial, for the Fran’s Market

burglary, conspiracy, and the murder of Mary Sue Kitts.

Numerous witnesses, including Bryon Schletewitz, Mayfield,

Jones, Furrow, Doeckel, Carrasco, and Meyer, testified on

behalf of the prosecution. Allen was convicted of burglary,

conspiracy, and the first-degree murder of Kitts, and was sen-

tenced to life in prison with the possibility of parole.

B. The Fran’s Market Triple-Murder and Witness

Retaliation Scheme

While incarcerated at Folsom Prison, Allen called and

wrote his second son, Kenneth, to request several copies of a

magazine article about Kitts’s murder. He explained that he

952 ALLEN v. WOODFORD

wanted to send the copies to other prisons to solicit help retal-

iating against those who had testified against him.

In Folsom, Allen met Billy Ray Hamilton, a fellow inmate

and convicted robber who was housed nearby and worked

with Allen in the prison’s kitchen for two months in mid-

1980. Hamilton, nicknamed “Country,” became Allen’s

“dog,” running errands and taking care of various problems in

return for cash. Another inmate, Gary Brady, would occasion-

ally assist Hamilton. Brady was scheduled to be paroled on

July 28, 1980; Hamilton was scheduled for parole one month

later.

After Hamilton and Brady had been helping him for some

time, Allen informed them that he had an appeal coming up

and wanted certain people taken “out of the box, killed,”

because “they had been onto his appeal,” and “messed him

around on a beef.” Allen mentioned the names “Bryant”

(Bryon), Charles Jones, and “Sharlene” as witnesses to be

killed, and offered Hamilton $25,000 for the job. Allen also

confided to another inmate, Joseph Rainier, that he had been

convicted of first-degree murder based on the testimony of

“the guy who did the actual killing” and that he would like to

see this person, as well as four other witnesses, killed. Rainier

saw Allen and Hamilton huddled close together and talking

on the prison yard bleachers and track every day for the four

to six weeks before Hamilton’s release in late August 1980.

In response to Rainier’s repeated inquiries about what was

going on, Allen stated that Hamilton was “going to take care

of some rats for [him].” Allen later elaborated that Hamilton

was going to “get paid for the job” and that “Kenny was going

to take care of transportation.” Allen said that he could likely

“win his appeal” if the witnesses were killed and offered to

have witnesses who had testified against Rainier killed as

well.

Allen asked his eldest son Kenneth, and Kenneth’s wife

Kathy to visit him in jail, which they did with their baby on

ALLEN v. WOODFORD 953

August 15. Allen told Kenneth that both Ray and Bryon

Schletewitz were going to be murdered and that the other wit-

nesses against him would also be eliminated so that he would

prevail on retrial if he won his appeal. He added that Shirley

Doeckel had agreed to change her testimony if he were

granted a new trial. Allen gave Hamilton’s mug shot to Ken-

neth and explained that Hamilton — whom he referred to as

“Country” — would commit the killings and that he expected

Kenneth to supply “Country” with guns and transportation.

Kenneth agreed to find guns for Hamilton with Kathy’s help,

and Kenneth smuggled Hamilton’s photo out of prison in his

baby’s diaper. He and Kathy thereafter received a series of

letters from Allen detailing the evolving plans.

Soon after Hamilton was paroled, Kenneth wired him trans-

portation money and met him at the Fresno bus depot. At

Kenneth’s house, Hamilton confirmed that he was there to

murder Bryon and Ray Schletewitz, and asked to see the

weapons he would be using. He explained that he would not

kill Doeckel yet because she was helping him locate the other

hit-list witnesses. Hamilton’s girlfriend, Connie Barbo, joined

Hamilton in Fresno. She told acquaintances that she had a

chance to get a few thousand dollars and a hundred dollars

worth of “crank” for “snuffing out a life.”

On Thursday, September 4, Hamilton went to Kenneth’s

house to get a sawed-off shotgun, a .32 caliber revolver, and

seven shotgun shells from Kenneth. Hamilton discussed

Fran’s Market, stating that he knew there were two safes

there, one in the wall and the other in the freezer. He left that

evening with Barbo, telling Kenneth he was going to murder

Ray and Bryon Schletewitz. The two returned at about 9:45

p.m., however, explaining that they had aborted the execution

because Barbo objected to killing a 15-year-old Mexican boy

who was also in the store that night.

The next evening Hamilton took thirteen additional shotgun

shells and six more cartridges from Kenneth, and went with

954 ALLEN v. WOODFORD

Barbo back to Fran’s Market. When they arrived at 8 p.m.,

just before closing time, Bryon Schletewitz and employees

Douglas Scott White, Josephine Rocha, and Joe Rios were

there. Shortly after entering, Hamilton brandished the sawed-

off shotgun and Barbo produced the .32 caliber revolver.

Hamilton led White, Rocha, Rios, and Bryon toward the

stockroom and ordered them to lie on the floor. He told White

to get up and walk to the freezer, warning White he knew

there was a safe inside. When White told Hamilton there was

no safe there, Hamilton responded, “Get out ‘Briant.’ ” Bryon

Schletewitz then volunteered, “I am Bryon.” Following Ham-

ilton’s demand, Bryon gave up his keys and assured Hamilton

he would give him all the money he wanted.

While Barbo guarded the other employees, Bryon led Ham-

ilton to the stockroom where, from seven to twelve inches

away, Hamilton fatally shot him in the center of his forehead

with the sawed-off shotgun. Hamilton emerged from the

stockroom and asked White, “Okay, big boy, where’s the

safe?” As White responded, “Honest, there’s no safe,” Hamil-

ton fatally shot him in the neck and chest at point-blank range.

As Josephine Rocha began crying, Hamilton fatally shot her

through the heart, lung, and stomach from five to eight feet

away. Meanwhile, Joe Rios had escaped to the women’s rest-

room. Hamilton found him, opened the restroom door,

pointed the shotgun at Rios’ face, and shot him from three

feet away. Rios, however, had put his arm up in time to take

the blast in the elbow, saving his life. Assuming that Rios was

dead, Hamilton and Barbo fled the store, only to be spotted

by neighbor Jack Abbott, who had come to investigate after

hearing the shots. Barbo retreated back into the store’s rest-

room, and Hamilton and Abbott traded fire. Although hit,

Abbott managed to shoot Hamilton in the foot as he ran to his

getaway car. Barbo was apprehended by officers at the scene.

Hamilton called Kenneth later that evening, saying he had

“lost his kitten” and “things went wrong at the store.” The two

met and exchanged cars. Hamilton next drove to the Modesto

ALLEN v. WOODFORD 955

home of Gary Brady, the Folsom inmate who had been

paroled one month before Hamilton. While staying with

Brady, Hamilton told him he had “done robbery” and had

“killed three people for Ray.” He had Brady’s wife write to

Allen requesting the money he was owed for the job. The let-

ter, signed “Country,” gave Brady’s Modesto address as the

return address. Shortly thereafter, police arrested Hamilton for

robbing a liquor store across the street from Brady’s apart-

ment. The police seized from Hamilton an address book con-

taining a list of names and addresses of the eight people who

had testified against Allen at the 1977 Kitts murder trial —

Lee Furrow, Barbara Carrasco, Benjamin Meyer, Charles

Jones, Carl Mayfield, Shirley Doeckel, and Ray and Bryon

Schletewitz. When investigators visited Kenneth Allen’s

home, Kathy Allen gave them Hamilton’s mug shot.

After an article about the Fran’s Market triple-murder

appeared in the newspaper, Allen asked fellow inmate Rai-

nier, “Why don’t you testify against me . . . and see if you can

help yourself or get some time off?” When Rainier responded

that he could not do that, Allen patted him on the back and

said, “You wouldn’t want to do that anyway because you do

have a lovely daughter.”

Shortly after the Fran’s Market murders, Kenneth was

arrested on drug charges. The police interviewed Kenneth

about the murders. A week later, he contacted the police to

offer his testimony in return for protective custody and his

choice of prisons. He eventually entered into a plea agreement

in which he promised to testify “truthfully and completely” in

all proceedings against Hamilton, Barbo, and Allen. In June

1981, Allen was charged in the Fran’s Market triple-murder

and underlying conspiracy. Kenneth testified at Allen’s pre-

liminary hearing.

C. Allen’s 1982 Trial for the Fran’s Market Triple-

Murder and Conspiracy

Allen was charged with murdering Bryon Schletewitz

(count one), Douglas Scott White (count two), and Josephine

956 ALLEN v. WOODFORD

Rocha (count three), and conspiring to murder Bryon Schlete-

witz, Ray Schletewitz, Lee Furrow, Barbara Carrasco, Benja-

min Meyer, Charles Jones, and Carl Mayfield (count four).

The information further alleged eleven special circumstances:

five under count one, three under count two, and three under

count three.

The jury heard from 58 witnesses over the 23-day guilt

phase of Allen’s trial. Although the prosecutor terminated

Kenneth’s plea agreement after discovering Kenneth had writ-

ten to Allen promising to change his testimony at trial, Ken-

neth, stating he wanted to testify truthfully, and having been

fully advised of his rights and the fact that the previous plea

agreement was terminated, testified for the prosecution.

In addition, Allen took the stand in his own defense. He

denied any involvement in the Fran’s Market murders or in

the conspiracy to execute the witnesses who testified against

him in his previous trial; however, he admitted on cross-

examination that he had told his “good dog” Hamilton to go

to Fresno, and that he wrote all of the letters received into evi-

dence and conceded they referred to Hamilton’s impending

visit to Fresno. Allen confirmed that parts of those letters

referred to Meyer, Mayfield, and Jones, and that a phrase he

had used — “taken care of” — meant “to kill.” He also

acknowledged that he had access to mug shots in Folsom

Prison, and admitted talking to Hamilton in the bleachers at

the prison. After being confronted with a tape recording, he

admitted ordering Kathy Allen to call the Schletewitzes to

impersonate Mary Sue Kitts, and to pretend to be the mother

of Bryon’s baby so as to induce the family to call off the Kitts

murder investigation.

Allen’s testimony also confirmed many of the details about

his former criminal activities and convictions about which

Jones, Mayfield, Furrow, Meyer, Doeckel, and Carrasco had

all testified. He denied planning the Kitts murder, but

described how he had helped transport and dispose of her

ALLEN v. WOODFORD 957

body. He also described in great detail his formula for execut-

ing “fool-proof” armed robberies of various K-Mart stores,

and described in detail his role in the Tulare K-Mart robbery.

Finally, Allen maintained that “when a guy puts a rat jacket

on himself [i.e., becomes a snitch], killing them would do

them a favor.”

Allen’s daughter-in-law, Kathy, tried to exculpate Allen

and implicate her husband, Kenneth, as the drug-crazed, hal-

lucinogenic mastermind of the Fran’s Market murders. She

recalled, however, that Kenneth had discussed getting “guns

for witnesses” with his father at Folsom and that Barbo had

told her that she and Hamilton could not leave any witnesses.

Kathy admitted that she had previously testified for Allen, had

tried to falsify evidence about the murders, and had transmit-

ted messages to Hamilton for Allen.

Three prison inmate witnesses, John Frazier, Henry Bor-

bon, and Andrew Thompson testified that Hamilton, Allen,

and Brady could not have met together in the Folsom yard.

Thompson nevertheless admitted that he called Allen “Dad”

and would lie to protect him. Borbon’s testimony was

impeached by that of other witnesses.

After three days of deliberation, on August 22, 1982, the

jury found Allen guilty as charged. Allen then admitted that

he had previously been convicted of murder, confirming three

of the eleven special circumstance allegations that had been

bifurcated from the trial pursuant to California Penal Code

§ 190.1(b).

Eight days later, the penalty phase began. The State’s evi-

dence showed that Allen had masterminded eight prior armed

robberies: (1) the August 12, 1974, armed robbery at Safina

Jewelry in Fresno, which yielded $18,000 worth of jewelry;

(2) the September 4, 1974, armed robbery of Don’s Hillside

Inn in Porterville in which $3,600 was taken from the safe and

hundreds of dollars in cash and credit cards were taken from

958 ALLEN v. WOODFORD

patrons at the scene; (3) the February 12, 1975, residential

armed robbery of William and Ruth Cross, an elderly Fresno

couple, in which a coin collection valued at $100,000 was

taken; (4) the June 18, 1975, attempted robbery at Wickes

Forest Products in Fresno, resulting in Allen’s arrest; (5) the

October 21, 1976, armed robbery at Skagg’s Drug Store in

Bakersfield, in which one of Allen’s associates accidentally

shot himself; (6) the November 20, 1976, armed robbery at a

Sacramento Lucky’s market, in which grocery clerk Lee

McBride was shot and sustained permanent damage to his

nervous system; (7) the February 10, 1977, robbery at a

Tulare K-Mart, in which more than $16,000 in cash was

taken; and (8) the March 16, 1977, Visalia K-Mart robbery,

during which Larry Green held a gun to the head of one

employee and shot another in the chest, permanently disabling

him.

Prosecution evidence also showed that while in the Fresno

County jail on June 27, 1981, Allen called a “death penalty”

vote for inmate Glenn Bell, an accused child molester.

According to the evidence, Allen directed an attack during

which inmates scalded Bell with two gallons of hot water, tied

him to the cell bars and beat him about the head and face, and

thereafter shot him with a zip gun and threw razor blades and

excrement at him while he huddled in his blanket in the cor-

ner of the cell.

The evidence also established that Allen repeatedly threat-

ened that anyone who “snitched” on the Allen gang would be

“blown away” or killed. Allen had also thwarted prosecution

of the attempted robbery at Wickes Forest Products by threat-

ening the chief prosecution witness and his family.

Allen’s prior convictions of (1) conspiracy, first-degree

murder, first-degree burglary, and (2) first-degree robbery,

attempted robbery, and assault with a deadly weapon were

introduced. The parties also stipulated to the consideration by

the jury of the guilt-phase testimony by Ray Schletewitz,

ALLEN v. WOODFORD 959

Mayfield, Jones, Furrow, and Meyer concerning (1) the prior

conspiracy to murder and the first degree murder of Kitts; (2)

the 1974 robbery at the Safina Jewelry Store; (3) the 1977

burglary and robbery of the Tulare K-Mart; and (4) the 1977

assault with a deadly weapon, burglary, conspiracy to commit

robbery, and attempted robbery of the Visalia K-Mart.

Allen put on two witnesses. His former girlfriend, Diane

Appleton Harris, testified to his good character, explaining

that Allen had helped her financially both before and after her

marriage to Jerry Harris. Harris further testified that Allen had

helped rush her to the hospital on one occasion, that he was

good to children, and that he wrote poetry. But, Harris admit-

ted that Allen had also threatened to kill her husband.

The second witness, San Quentin inmate John Plemons,

testified that he had instigated the assault on accused child

molester Glenn Bell in the Fresno County jail, and that Allen

had nothing to do with it. Plemons’s testimony was rebutted

by Correctional Officer Delma Graves, who testified that Bell

told her immediately after the incident that Allen had insti-

gated the assault.

After deliberating for less than one day, the jury returned

a verdict of death. The trial court denied Allen’s “statutory

motion for a new trial” and sentenced him to death.

D. Appellate and Habeas Proceedings

The California Supreme Court affirmed Allen’s conviction

and sentence on December 31, 1986, Allen, 42 Cal. 3d at

1222, and summarily denied his December 1987 and March

1988 supplemental habeas petitions. Allen filed a federal

habeas petition on August 31, 1988, and moved for an eviden-

tiary hearing. The district court then stayed the proceedings

for exhaustion of all claims.

The district court reopened Allen’s federal habeas proceed-

ings in September 1993. Allen moved for an evidentiary hear-

960 ALLEN v. WOODFORD

ing, which was granted in part. In April 1997, the magistrate

judge presided over a six-day evidentiary hearing on the issue

of ineffective assistance of counsel in the penalty phase. On

March 9, 1999, the magistrate judge issued Findings and Rec-

ommendations denying Allen’s habeas petition. Following

objections to the magistrate judge’s Findings and Recommen-

dations, the district court conducted a de novo review of the

case in compliance with 28 U.S.C. § 636(b)(1)(C), holding

argument on April 26, 2001. On May 11, 2001, the district

court issued a Memorandum and Order adopting in full the

magistrate judge’s Findings and Recommendations and deny-

ing Allen’s petition. Allen timely filed a notice of appeal and,

on July 5, 2001, the district court issued a Certificate of

Appealability, certifying both guilt- and penalty-related

issues.

II. Jurisdiction and Standard of Review

We review Allen’s pre-AEDPA petition de novo. “In par-

ticular, claims alleging ineffective assistance of counsel are

mixed questions of law and fact and are reviewed de novo.”

Silva v. Woodford, 279 F.3d 825, 835 (9th Cir.), cert. denied,

537 U.S. 942 (2002). We review the district court’s findings

of fact for clear error, present only where we have a “ ‘defi-

nite and firm conviction that a mistake has been committed.’ ”

Id. (quoting United States v. Syrax, 235 F.3d 422, 427 (9th

Cir. 2000)). “Although less deference to state court factual

findings is required under the pre-AEDPA law which governs

this case, such factual findings are nonetheless entitled to a

presumption of correctness unless they are ‘not fairly sup-

ported by the record.’ ” Id. at 835 (citing 28 U.S.C.

§ 2254(d)(8) (1996)). Thus, we owe the state court’s factual

findings less deference here than in a case governed by

AEDPA; however, such factual findings are entitled to a pre-

sumption of correctness as long as they are fairly supported

by the record. Id.

ALLEN v. WOODFORD 961

III. Guilt-Phase Claims

[1] Allen collaterally challenges his conviction on numer-

ous grounds. As explained below, however, to the extent that

any claim of error in the guilt phase might be meritorious, we

would reject that error as harmless because the evidence of

Allen’s guilt is overwhelming. Because of the compelling

nature of the guilt-phase evidence, for purposes of decision,

we address the evidence of guilt before turning to Allen’s

claims of trial error.

A. Evidence of Allen’s Guilt

Allen’s own son Kenneth directly tied Allen to the Fran’s

Market triple-murder and conspiracy, testifying as to Allen’s

plotting and recruiting of Hamilton, Kathy, and himself.

Brady corroborated Kenneth’s testimony, explaining that

Allen attempted to recruit both Hamilton and Brady to kill

those who had testified against Allen, and describing how he

housed Hamilton immediately after the triple-murder.

Extensive evidence corroborated Kenneth’s and Brady’s

testimony and supported the jury’s guilty verdict. Joe Rainier

testified that Allen told him Hamilton was going to take care

of “some rats” for him, that Hamilton would be paid for the

job and that “Kenny [would] take care of transportation.” Rai-

nier also testified that he saw Allen and Hamilton talking

together in the prison yard every day for the four to six weeks

preceding Hamilton’s release. Even Kathy Allen, one of

Allen’s biggest supporters, testified that when she and Ken-

neth visited Allen, she heard Allen mention “guns for witness-

es.” In addition, the police found the list of witnesses against

Allen in Hamilton’s possession and a mug shot of Hamilton

— to which Allen had access in prison — in Kenneth and

Kathy’s home.

Most damning of all, though, was the evidence that came

directly from Allen. He admitted writing letters to Kenneth

962 ALLEN v. WOODFORD

and Kathy about “Country” Hamilton coming to town. In

those letters, Allen implied or spoke directly about the harm

he hoped would befall the witnesses against him. On August

26, 1980, for example, Allen wrote “Hey, I hear a ‘country’

music show is coming to ‘town’ around September 3rd.” Ken-

neth testified that “show” meant murder. The letter went on,

“ ‘Remember’ September 3? Around that date ya all plan on

listening to a lot of good ol’ ‘country’ music, okay? Just for

me. You know how I like ‘country.’ ” The following day,

Allen wrote another letter, entitled, “Happy days ahead.” This

letter stated, “Now remember around September 3rd, have

everything ready so ya all can go to that ‘country’ music

show. I know ya all really ‘enjoy yourselves.’ I know you

kids never liked ‘country’ music before, but I bet when you

hear that dude on lead guitar, you will be listening to it at least

once a week. Ha-ha.” Allen further asked Kenneth to “give

his best” to Carl Mayfield: “Tell him I am thinking of him and

I hope to see him one day, but I am sure he knows that

already.”

Allen also called Shirley Doeckel a “snitch bitch” and

wished her “many, many more” problems. He wrote of “his

dog,” Hamilton, leaving Folsom and wanting to find and meet

“Chuckettea” (a.k.a. Chuck Jones). Allen also wrote that

Hamilton wanted to meet “Mr. Jones and Mr. Mayfield and

a few other good friends” and that “he might move out close

to Raisin City,” home of Ben Meyer. Allen further admitted

asking Hamilton to go see Kenneth and Kathy in Fresno; at

first he claimed that he had merely asked Hamilton to visit his

children and grandchildren, but he eventually admitted that

Hamilton was to unload a “hot gun” from Kenneth and Kathy.

The jury was also able to examine several of Allen’s poems,

some of which emoted over and identified with the life of a

contract hit man, including the following “Allen Gang” poem:

Ray and his sons are known as the Allen Gang.

Sometimes you have often read

ALLEN v. WOODFORD 963

how we rob and steal and for those who squeal

are usually found dying or dead.

The road gets slimmer and slimmer

and at times it is hard to see,

but we stand like a man

robbing every place we can,

because we know we’ll never be free.

Someday it will be over

and they will bury us side by side.

To some it will be grief,

but to us it’s relief

knowing we finally found a safe place to hide.

Allen’s testimony was fraught with damaging inconsisten-

cies and implausible explanations. He admitted lying and tell-

ing his associates that Lee Furrow had been killed in Mexico.

He implausibly asserted that he had not directed or been

involved in killing Mary Sue Kitts, but that he had only “as-

sisted in the disposal of her body.” Allen also testified that he

“barely even knew . . . Billy Ray Hamilton” and that he only

“talked to him maybe three or four times,” although he

referred to Hamilton numerous times as “his good dog”

(which, as he testified, meant “close acquaintance”) in his let-

ters to Kenneth and Kathy. Allen testified inconsistently as to

whether he went to San Diego to cash money orders stolen

from Fran’s Market and whether the Schletewitzes had come

to his house to pressure him to pay money that he owed them.

After having his memory refreshed by a tape recording, Allen

also admitted lying about having had Kathy Allen “call the

Schletewitzes and act as if she were Mary Sue Kitts.” Ques-

tioned repeatedly about the inmate photos in his cell, Allen

finally asserted that he was “planning on writing a book about

twelve convicts that [he] got acquainted with in Folsom.”

Allen further testified about much of his prior criminal his-

tory, including his knowing solicitation of someone — Larry

Green — that he considered to be “a very dangerous man”

964 ALLEN v. WOODFORD

and knew “might kill somebody” to commit burglaries.

Finally, Allen provided illuminating testimony regarding his

hatred of snitches. Among many other statements, Allen

explained: “[W]hen a guy puts a rat jacket on himself, killing

them would do them a favor.”

B. Guilt-Phase Claims

None of Allen’s claims has merit. Even if we were to find

any of his claims meritorious, we would not find that such

error “had a substantial and injurious effect on the jury’s ver-

dict.” Brecht v. Abrahamson, 507 U.S. 619, 627 (1993) (inter-

nal quotation marks omitted). Therefore, we address each

only briefly.

1. State’s Alleged Reliance on False Testimony

Allen claims that the State’s reliance on false testimony to

establish and maintain his conviction entitles him to relief.

‘[A] conviction obtained by the knowing use of per-

jured testimony is fundamentally unfair, and must be

set aside if there is any reasonable likelihood that the

false testimony could have [a]ffected the judgment

of the jury.’

United States v. Young, 17 F.3d 1201, 1203 (9th Cir. 1994)

(quoting United States v. Agurs, 427 U.S. 97, 103 (1976)).

Premised upon Kenneth Allen’s recantation after judgment

and Gary Brady’s alleged perjury, this claim falls of its own

weight.

a. Kenneth Allen’s Recantation

[2] Kenneth Allen’s later recantation of his trial testimony

does not render his earlier testimony false. See Dobbert v.

Wainwright, 468 U.S. 1231, 1233 (1984) (Brennan, J., dis-

senting from denial of certiorari) (“Recantation testimony is

ALLEN v. WOODFORD 965

properly viewed with great suspicion.”); see also Carriger v.

Stewart, 132 F.3d 463, 483 (9th Cir. 1997) (en banc) (Kozin-

ski, J., dissenting) (“Appellate courts . . . look upon recanta-

tions with extreme suspicion.”); 58 Am. Jur., New Trial § 345

(“recantation testimony is generally considered exceedingly

unreliable”). Here, Kenneth’s recantation testimony is even

more unreliable because his trial testimony implicating Allen

is consistent with the other evidence, while his recantation is

not. For example, Kenneth now denies that he discussed kill-

ing witnesses with Allen during their visit at Folsom Prison

on August 15, 1980. At Allen’s trial, however, Kenneth’s

estranged wife Kathy, who testified on Allen’s behalf and

admitted trying to fabricate evidence to exculpate Allen, testi-

fied that she overheard Kenneth and Allen discussing “getting

guns for witnesses” at that Folsom Prison meeting. Kenneth

now also claims that Allen only sent Hamilton to Kenneth’s

house to give Hamilton an opportunity to look for a job. Allen

testified at trial, however, that Allen sent Hamilton to Fresno

to help Kenneth dispose of a “hot” gun and that Hamilton was

only stopping in Fresno on his way to San Diego.

Kenneth’s recantation also conflicts with all the other evi-

dence pointing to Allen’s involvement in planning the mur-

ders. For example, there are contradictions between

Kenneth’s recantation and: (1) Allen’s numerous letters to

Kenneth reminding him of Hamilton’s visit to Fresno; (2) the

list of witnesses from Allen’s first trial found on Hamilton

when he was arrested; and (3) Kenneth’s possession of a mug

shot of Hamilton. No reasonable juror could find the current

story credible when it is only Kenneth’s trial testimony that

makes sense in light of all the other evidence. Moreover,

Allen asserts no evidence, even assuming that Kenneth’s trial

testimony was false, that the State “knew, or should have

known” that it was false. United States v. Geston, 299 F.3d

1130, 1135 (9th Cir. 2002) (“It is a prosecutor’s duty to

refrain from knowingly presenting perjured testimony . . . .”)

(internal quotation marks omitted).

966 ALLEN v. WOODFORD

b. Gary Brady

Although Allen points out minor inconsistencies in Brady’s

testimony at pretrial proceedings, at Allen’s trial, at another

trial, and at Brady’s deposition, Allen fails to establish that

Brady’s testimony at Allen’s trial was untruthful. Indeed,

Brady has testified consistently as to the material facts. In

People v. Marshall, for example, Brady testified that Allen

asked Brady and Hamilton to kill some people who had testi-

fied against him. 13 Cal. 4th 799 (1996). Then in his deposi-

tion, Brady again confirmed that Allen offered to pay Brady

and Hamilton for killing the witnesses to the former proceed-

ing.

Brady’s trial testimony was also subjected to substantial

impeaching evidence, such as Brady’s substance abuse prob-

lem, prior felony convictions, blackouts, agreements with

prosecutors by which charges were dropped against Brady

and his wife in exchange for Brady’s testimony, and his

admission to the witness protection program. Inconsistencies

between Brady’s direct testimony at trial and his preliminary

hearing testimony were also pointed out to the jury.

Allen fails to establish either that Brady’s testimony was

false or that the State had any reason to believe it was false.

2. Coerced Testimony of Kenneth Allen

[3] We reject Allen’s argument that the prosecutor “co-

erced” Kenneth’s testimony, and that such “coercion” entitles

him to relief. Allen argues that the terms of the State’s bargain

with Kenneth Allen, and its withdrawal of that bargain, led

Kenneth to adhere to the testimony he gave at the preliminary

hearing, rather than tell the truth. This claim fails because the

plea agreement was proper, the jury was fully informed, and

the agreement had been withdrawn before Kenneth testified.

An agreement that requires a witness to testify truthfully in

exchange for a plea is proper so long as “the jury is informed

ALLEN v. WOODFORD 967

of the exact nature of the agreement, defense counsel is per-

mitted to cross-examine the accomplice about the agreement,

and the jury is instructed to weigh the accomplice’s testimony

with care.” United States v. Yarbrough, 852 F.2d 1522, 1537

(9th Cir. 1988). Here, the jury was thoroughly informed,

through direct and cross-examination, of the plea agreement,

Kenneth’s subsequent letter, the prosecutor’s withdrawal of

the plea offer, and Kenneth’s belief that it remained valid. The

jury was also instructed to view accomplice testimony with

“distrust” and to credit it only if corroborated. Moreover,

Allen has presented no evidence supporting a finding of coer-

cion by the State.

3. Jury Instruction — CALJIC No. 2.11.5

The trial court instructed the jury pursuant to CALJIC No.

2.11.5 that it “must not discuss or give any consideration as

to why the other person or persons are not being prosecuted

in this trial or whether they have been or will be prosecuted.”

Allen claims that this instruction directed the jury not to con-

sider whether Kenneth and Kathy Allen might be tried for the

crimes and hence precluded it from considering whether Ken-

neth testified to protect his wife and himself from prosecution.

[4] A challenged instruction violates the federal constitu-

tion if there is a “reasonable likelihood that the jury has

applied the challenged instruction in a way that prevents the

consideration of constitutionally relevant evidence.” Boyde v.

California, 494 U.S. 370, 380 (1990). Even if the trial court

was mistaken to give this instruction, any mistake was cured

by the instructions read as a whole. See infra p. 1003. Here,

the jury was specifically instructed regarding witness bias,

interest, or other motive. It was also instructed that Kenneth

was an accomplice whose testimony should be viewed with

distrust, examined with care and caution, and corroborated. In

light of the trial court’s instructions read as a whole, there is

no reasonable likelihood that the jury understood CALJIC No.

2.11.5 to bar consideration of Kenneth’s motives for testify-

968 ALLEN v. WOODFORD

ing. See People v. Fauber, 2 Cal. 4th 792, 863 (1992) (giving

CALJIC No. 2.11.5 was harmless error given the totality of

the instructions).

4. Prosecutorial Misconduct

Allen contends that various incidents of prosecutorial mis-

conduct rendered his trial fundamentally unfair. To the extent

his claims of prosecutorial misconduct are not barred or factu-

ally or legally deficient, they do not constitute error of such

degree as to have substantially and injuriously affected the

verdict.

a. Due Process Right to Immunization of Defense

Witnesses

Allen asserts a due process right to judicial immunity for

his defense witnesses, independent of prosecutorial miscon-

duct. This assertion is a “new constitutional rule[ ] of criminal

procedure,” which is barred by Teague v. Lane. 489 U.S. 288

(1989). New constitutional rules of criminal procedure are

inapplicable to “cases which have become final before the

new rules are announced.” Id. at 310.

When Allen’s conviction became final on October 5, 1987,

only one court had recognized judicially conferred immunity

in select circumstances. See Virgin Islands v. Smith, 615 F.2d

964 (3d Cir. 1980). The remedy Allen seeks was thus hardly

compelled by precedent. See United States v. Lord, 711 F.2d

887, 891 n.2 (9th Cir. 1983) (expressly declining to reach the

merits of Virgin Islands’ concept of judicially conferred

immunity); People v. Hunter, 49 Cal. 3d 957, 974 (1989) (rec-

ognizing Virgin Islands as “the one case which has clearly

recognized [judicially conferred immunity]”).

b. Selective Immunization of Witnesses

[5] There is no evidence to support Allen’s claim that the

prosecutor selectively granted immunity. Allen argues the

ALLEN v. WOODFORD 969

prosecutor had no good reason to deny immunity to Billy Ray

Hamilton, whose conviction and death sentence were on

appeal at the time, or to Connie Barbo. Allen has not demon-

strated that the prosecutor intentionally distorted the judicial

fact-finding process by denying immunity to a potential wit-

ness whose testimony would have been relevant to the

defense. Lord, 711 F.2d at 890-91. Allen presented no evi-

dence that the prosecutor’s denial of immunity to Barbo or

Hamilton was motivated by a desire to distort the fact-finding

process. Moreover, Allen fails to show how either Barbo’s or

Hamilton’s testimony would have exculpated him.

c. Failure to Disclose Exculpatory Information

[6] The State did not violate Brady v. Maryland, 373 U.S.

83 (1963), when it failed to disclose evidence that would have

impeached the credibility of both Brady and Kenneth. Specifi-

cally, Allen claims the prosecutor failed to disclose (1)

Brady’s cooperation with authorities and testimony in People

v. Marshall, 13 Cal. 4th 799 (1996), a case similar to Allen’s;

(2) information about Brady’s previous insanity finding and

Brady’s early case-related conversations with authorities; and

(3) the existence of a letter written by Kenneth’s wife Kathy,

instructing Kenneth how to change his testimony at Hamil-

ton’s trial.

The constitutional guarantee of due process imposes upon

the State the affirmative duty to disclose exculpatory informa-

tion. Brady, 373 U.S. at 87. The failure to disclose this infor-

mation “amounts to a constitutional violation only if it

deprives the defendant of a fair trial,” and requires reversal

“only if the evidence is material in the sense that its suppres-

sion undermines confidence in the outcome of the trial.”

United States v. Bagley, 473 U.S. 667, 678 (1985). The testi-

mony of Brady and Kenneth was substantially impeached.

The jury heard about Brady’s substance abuse problem,

numerous prior felony convictions, blackouts, agreements

dropping charges against Brady and his wife in exchange for

970 ALLEN v. WOODFORD

his testimony, and his placement in the witness protection

program. The jury was also fully apprised of Kenneth’s failed

plea bargain and inconsistent statements. The additional

impeachment evidence identified by Allen is simply cumula-

tive of other impeachment evidence.

d. Misconduct in Closing Argument

[7] Although some of the prosecutor’s comments during

closing argument were improper, none of them, considered

separately or cumulatively, prejudiced Allen. Improper pro-

secutorial argument violates rights under the federal constitu-

tion if it “ ‘so infected the trial with unfairness as to make the

resulting conviction a denial of due process.’ ” Darden v.

Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v.

DeChristoforo, 416 U.S. 637, 643 (1974)). It “is not enough

that the prosecutors’ remarks were undesirable or even uni-

versally condemned.” Id. (internal quotation marks omitted).

The prosecutor’s comments regarding Allen’s courtroom

demeanor were permissible because Allen chose to testify.

See United States v. Schuler, 813 F.2d 978, 981 n.3 (9th Cir.

1987) (“When a defendant chooses to testify, a jury must nec-

essarily consider the credibility of the defendant. In this cir-

cumstance, courtroom demeanor has been allowed as one

factor to be taken into consideration.”).

The prosecutor’s description of what Allen’s victims would

say from beyond the grave did not deny Allen due process

because it was intended to summarize the evidence presented.

See Drayden v. White, 232 F.3d 704, 713 (9th Cir. 2000)

(holding that prosecutor’s creation of a fictitious character

based on the dead victim and delivering closing argument in

the voice of that character is not a denial of due process

because his statements were supported by the evidence and

reasonable inferences therefrom).

Finally, however, the prosecutor’s suggestion that Allen

and his counsel conspired to retaliate against witness Joseph

ALLEN v. WOODFORD 971

Rainier was misconduct. However, given the trial court’s

instruction that statements by counsel were not evidence, and

given the weight of the evidence against him, the prosecutor’s

comments did not deprive Allen of a fair trial.

5. Ineffective Assistance of Counsel in the Guilt Phase

Allen’s claims of ineffective assistance of counsel fail

either because counsel did not act deficiently or because

counsel’s actions did not prejudice him. Two requirements

must be met to establish a claim of ineffective assistance of

counsel. First, “the defendant must show that counsel’s per-

formance was deficient. This requires showing that counsel

made errors so serious that counsel was not functioning as the

‘counsel’ guaranteed the defendant by the Sixth Amendment.”

Strickland, 466 U.S. at 687. The proper inquiry under this

prong is whether counsel’s performance was “reasonable[ ]

under prevailing professional norms.” Id. at 688. However,

“the court should recognize that counsel is strongly presumed

to have rendered adequate assistance and made all significant

decisions in the exercise of reasonable professional judg-

ment.” Id. at 690. Second, “the defendant must show that the

deficient performance prejudiced the defense. This requires

showing that counsel’s errors were so serious as to deprive the

defendant of a fair trial, a trial whose result is reliable.” Id. at

687. “An error by counsel, even if professionally unreason-

able, does not warrant setting aside the judgment of a criminal

proceeding if the error had no effect on the judgment.” Id. at

691. Therefore, “[t]he defendant must show that there is a rea-

sonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.

A reasonable probability is a probability sufficient to under-

mine confidence in the outcome.” Id. at 694.

a. Failure to Seek Second Counsel

[8] Although use of second counsel in defending capital

cases is now recommended by the American Bar Association,

972 ALLEN v. WOODFORD

this recommendation did not go into effect until 1985. ABA

Standards for Criminal Justice 5-6.1 (3d ed. 1992). Thus, use

of second counsel was not the prevailing standard at the time

of Allen’s trial in 1982. Moreover, “[t]rial counsel cannot be

said to be constitutionally ineffective for deciding not to bring

in co-counsel, unless there is some reason . . . why the first

lawyer is unable to provide adequate representation.” Pitson-

barger v. Gramley, 141 F.3d 728, 738 (7th Cir. 1998). The

record does not demonstrate that counsel was or should have

been aware at the outset that he could not try this capital case

on his own. While it might have been wise to seek second

counsel, his failure to do so did not constitute deficient perfor-

mance.

b. Opening Statement

[9] Counsel’s opening statement contained promises of the

production of certain evidence and witnesses ultimately left

unfulfilled at trial, and opened with a recitation of Allen’s

“Hit Man” poem:

I am a contract man, some people say,

Dusting off people for those who pay,

Waiting in a room to get a call,

Knowing when it comes someone will fall.

Some people say I’m cold and mean,

Wasting someone I’ve never seen.

But filling a contract comes real high,

I give no thought for who will die.

I travel a lot, always alone,

Not knowing the feeling of having a home.

Of all the people I’ve blown away,

I’ve never heard one of them pray.

I know one day the time will come,

I’ll be blown away by a contract’s gun.

Counsel’s decision to introduce Allen’s “Hit Man” poem dur-

ing the opening statement was a strategic decision, intended

ALLEN v. WOODFORD 973

to preempt the State from obtaining the most damaging use of

a poem that would inevitably be introduced. Because coun-

sel’s strategic choice is presumed sound, counsel’s perfor-

mance was not deficient. See Strickland, 466 U.S. at 689.

Moreover, even if counsel’s conduct was arguably deficient,

in light of the overwhelming evidence of guilt, Allen cannot

establish prejudice.

c. Failure to Impeach Prosecution Witnesses

Nor was the impeachment of Kenneth and Brady deficient

or prejudicial. With respect to Brady, counsel elicited a host

of impeachment evidence, including Brady’s drug and alcohol

use, memory loss, cooperation with law enforcement, and dis-

crepancies between his trial testimony and his previous state-

ments. Counsel similarly introduced evidence of Kenneth’s

drug use and conflicting stories to the police about the triple-

murder, as well as testimony contradicting Kenneth’s claim

that he never announced an intention to kill the witnesses

against his father. Not only was counsel’s impeachment of

Brady and Kenneth adequate, but any failure to elicit addi-

tional evidence was inconsequential, especially in light of the

evidence of guilt.

d. Failure to Call Witnesses

[10] Counsel’s decision not to call inmate Michael Brooks,

several prison employees, Barbo, and Hamilton as witnesses

was a strategic decision, not deficient performance as Allen

asserts. “A fair assessment of attorney performance requires

that every effort be made to eliminate the distorting effects of

hindsight.” Strickland, 466 U.S. at 689. Moreover, Allen must

“overcome the presumption that, under the circumstances, the

challenged action might be considered sound trial strategy.”

Id. (internal quotation marks omitted). Brooks and the prison

employees would have testified that Allen was a loner and

was not generally seen with Brady and Hamilton. Such testi-

mony, however, was belied by the testimony of Kenneth,

974 ALLEN v. WOODFORD

Brady, and Rainier, as well as by Allen’s own letters referring

to Hamilton as his “good dog.” Barbo would simply have tes-

tified that she was unaware of Allen’s involvement, which

would have been little assistance to the defense. Further, the

statements given by Hamilton, which Allen contends should

have been admitted, actually implicate Allen. Therefore,

Allen has not overcome the presumption that counsel’s trial

strategy was sound. Id.

e. Failure to Introduce Other Exonerating Evidence

Similarly, counsel’s decision against introducing evidence

suggesting that the Fran’s Market triple-murder resulted from

a botched robbery attempt was a strategic decision, not defi-

cient performance as Allen suggests. Doing so could not have

effectively countered the evidence demonstrating that the

murders were planned. Although emphasis on shifting the

blame from Allen to Kenneth and Kathy may have been wise,

counsel’s strategic decision not to do so is at least presumed

sound, Strickland, 466 U.S. at 689, and Allen has not over-

come that presumption.

f. Allen’s Testimony and Closing Argument

[11] We reject Allen’s claim that counsel’s decision to put

Allen on the stand was deficient. Given the overwhelming

evidence of guilt introduced by the State, counsel may have

reasonably believed that placing Allen on the stand was the

only way to potentially rebut much of this evidence. Allen

adamantly testified that he was not part of any conspiracy to

commit murder. This testimony could come from no one but

Allen. Moreover, at the time, counsel could not have pre-

dicted just how damaging placing Allen on the stand would

be. Thus, counsel’s strategic choice is presumed sound. Str-

ickland, 466 U.S. at 689.

Allen cites Johnson v. Baldwin, 114 F.3d 835, 838 (9th Cir.

1997), for the proposition that counsel erred in placing him on

ALLEN v. WOODFORD 975

the stand. In Johnson, we determined that counsel should

have prevented the defendant’s “incredibly lame” testimony

by keeping him off the stand. Id. Johnson is inapposite, how-

ever, because there, the defense would likely have secured a

not-guilty verdict if only the defendant had not taken the stand

and obviously lied. Allen would not have enjoyed a similar

security in not testifying. In addition, while Allen’s counsel

was not as artful as he could have been in eliciting Allen’s

testimony, his performance was not unreasonable. Finally,

none of Allen’s overstated complaints about his counsel’s

closing statement, such as that counsel “hardly referred to

[Allen’s] testimony and never argued its truth,” undermines

our confidence in the jury’s guilty verdict.

IV. Penalty-Phase Claims

A. Ineffective Assistance of Counsel in the Penalty Phase

[12] A defendant “ha[s] a right — indeed, a constitutionally

protected right — to provide the jury with . . . mitigating evi-

dence.” Williams v. Taylor, 529 U.S. 362, 393 (2000). We

have explained that, “[t]o perform effectively in the penalty

phase of a capital case, counsel must conduct sufficient inves-

tigation and engage in sufficient preparation to be able to

‘present[ ] and explain[ ] the significance of all the available

[mitigating] evidence.’ ” Mayfield, 270 F.3d at 927 (quoting

Williams, 529 U.S. at 399). Defense counsel’s use of mitiga-

tion evidence to complete, deepen, or contextualize the pic-

ture of the defendant presented by the prosecution can be

crucial to persuading jurors that the life of a capital defendant

is worth saving. See Wiggins v. Smith, 123 S. Ct. 2527, 2542-

44 (2003); Alex Kotlowitz, In the Face of Death, N.Y. Times,

July 6, 2003, at 32-38, 46, 49 (attributing in part the decrease

in imposition of the death penalty to defense attorneys’

increasing skill and resourcefulness in presenting mitigation

evidence).

We must assess whether the decision of Allen’s counsel not

to investigate or present certain mitigating evidence was “the

976 ALLEN v. WOODFORD

result of reasonable professional judgment,” Strickland, 466

U.S. at 690, in light of all of the circumstances, “applying a

heavy measure of deference to counsel’s judgments,” Silva,

279 F.3d at 836. If we determine that counsel’s performance

was deficient, Allen still “bears the highly demanding and

heavy burden [of] establishing actual prejudice.” Williams,

529 U.S. at 394 (internal quotation marks omitted).

1. Deficient performance

Counsel’s untimely, hasty, and incomplete investigation of

potential mitigation evidence for the penalty phase fell outside

the “range of reasonable professional assistance.” Strickland,

466 U.S. at 689.

The Supreme Court recently emphasized the importance of

investigating mitigation evidence, holding that counsel erred

by inadequately investigating signs of a defendant’s very trou-

bled childhood. Wiggins, 123 S. Ct. at 2536-38. The Wiggins

Court noted relevant ABA Guidelines, which provide that

investigations into mitigating evidence “should comprise

efforts to discover all reasonably available mitigating evi-

dence and evidence to rebut any aggravating evidence that

may be introduced by the prosecutor.” Id. at 2537 (quoting

ABA Guidelines for the Appointment and Performance of

Counsel in Death Penalty Cases 11.4.1(C), p. 93 (1989)

(emphasis added)). The Court emphasized that an investiga-

tion into potential mitigating evidence should be thorough:

In assessing the reasonableness of an attorney’s

investigation . . . a court must consider not only the

quantum of evidence already known to counsel, but

also whether the known evidence would lead a rea-

sonable attorney to investigate further. . . . Strickland

does not establish that a cursory investigation auto-

matically justifies a tactical decision with respect to

sentencing strategy.

ALLEN v. WOODFORD 977

Id. at 2538.

[13] The failure to timely prepare a penalty-phase mitiga-

tion case is also error. In Williams, the Supreme Court found

constitutional error where counsel waited until one week

before trial to prepare for the penalty phase, thus failing to

adequately investigate and put on mitigating evidence. 529

U.S. at 395; see also Silva, 279 F.3d at 841. In addition, legal

experts agree that preparation for the sentencing phase of a

capital case should begin early and even inform preparation

for a trial’s guilt phase:

Counsel’s obligation to discover and appropriately

present all potentially beneficial mitigating evidence

at the penalty phase should influence everything the

attorney does before and during trial . . . .

***

The timing of this investigation is critical. If the

life investigation awaits the guilt verdict, it will be

too late. Although a continuance should be requested

and may be granted between the guilt and penalty

phases of a trial, it is likely to be too brief to afford

defense counsel the opportunity to conduct a sub-

stantial investigation.

Gary Goodpaster, The Trial for Life: Effective Assistance of

Counsel in Death Penalty Cases, 58 N.Y.U. L. Rev. 299, 320,

324 (1983) (footnote omitted). An expert testifying for Allen

explained the lengthy process of preparing a mitigation case:

[I]t is necessary to identify and interview the defen-

dant’s family members as well as past and present

friends, fellow workers, etc., in order to adequately

prepare for a capital trial. It is also necessary to

obtain records, such as school records, employment

978 ALLEN v. WOODFORD

records and medical records that may result in identi-

fying mitigation themes and mitigation witnesses.

Another time-consuming aspect of penalty phase

preparation is obtaining the cooperation of mitiga-

tion witnesses. For many reasons, mitigation wit-

nesses are frequently reluctant to come to court.

With time and multiple contacts, their reluctance can

be overcome as they understand the role that they

would play in the penalty phase of the trial and the

significance of their testimony.

Allen’s trial counsel failed to adequately investigate, pre-

pare, or present available mitigating evidence during the

trial’s penalty phase. Trial counsel admitted at the habeas evi-

dentiary hearing that he did not specifically prepare for the

sentencing phase until after the guilt phase had concluded.

This left counsel one week in which to prepare the witnesses

and evidence necessary to persuade the jury to spare Allen’s

life. Counsel also acknowledged that he failed to request a

continuance for further investigation. In addition, while Allen

provided his trial counsel a list of 26 potential mitigation wit-

nesses for the penalty phase, and Fresno probation reports

also listed potential witnesses, counsel and his investigator,

both inexperienced in handling capital cases, spoke to just a

few of the suggested witnesses.

Of the witnesses suggested by Allen and by the Fresno pro-

bation reports, counsel recalled contacting only four in prepa-

ration for the penalty phase. Telephone records and trial notes

indicate that he spoke with five additional potential witnesses.

Trial counsel testified at Allen’s habeas evidentiary hearing

that most people he contacted were unwilling to testify; how-

ever, he admitted that he made fairly quick judgments about

these witnesses’ attitudes and failed to discuss with them the

importance of mitigation testimony in the penalty phase.

While counsel may have made a sound decision not to call

Allen’s former wife, Helen Sevier, during the guilt phase, he

ALLEN v. WOODFORD 979

admitted that he could not recall whether he considered using

her as a witness in the penalty phase; nor could he recall if he

had explored Allen’s relationship with Sevier’s daughter,

Tammy.2 Trial counsel also chose not to call Allen’s thirteen-

year-old granddaughter, Paula, as a mitigation witness,

because the jury “would expect a grandchild to have nothing

but good things to say about a grandparent.”

[14] In his habeas evidentiary hearing, Allen produced

many family members, friends, and former associates who

affirmed that they would have testified as mitigation wit-

nesses if Allen’s counsel had asked them or if he had

explained the importance of their testimony. Trial counsel

failed to do so even though then-prevailing professional

norms required such investigation. Trial counsel’s failure to

prepare for the sentencing phase until a week before that

phase began, and his resulting failure to thoroughly investi-

gate and present Allen’s mitigation case, was constitutionally

deficient.

2. Prejudice

A finding of error is not enough, however, to justify a grant

of habeas relief. Allen must also demonstrate that his coun-

sel’s performance prejudiced him. We conclude that the evi-

dence in mitigation, coupled with the potential mitigating

evidence produced during these proceedings, is insufficient to

outweigh the overwhelming evidence in aggravation.

During the evidentiary hearing, Allen proffered numerous

witnesses. However, most had either lost touch with him long

2

The parties stipulated before the district court that counsel made a rea-

sonable tactical decision not to call Darlene Hope Allen, Allen’s second

and former wife. In addition, the district court correctly disregarded the

failure to call Darlene, Don Stockbridge, and Kim Radisch, because Allen

failed to make a showing that they would have testified if counsel had pur-

sued them as witnesses.

980 ALLEN v. WOODFORD

before his crimes or lacked knowledge of Allen’s criminal

convictions and admissions. Allen’s brother Glen testified

that, if asked, he would have told the sentencing jury about

the poor conditions in which his family lived as Allen grew

up, Allen’s hard work as a teenager on California farms, the

loss of a very close sister as a child, and Allen’s service as a

preacher. Glen, however, only saw Allen once between 1963

and his imprisonment for the murder of Mary Sue Kitts in San

Quentin and admitted that he had “slacked off” in writing to

Allen. Moreover, he was unfamiliar with the facts underlying

Allen’s current murder and conspiracy charges.

Gene Tassey would have testified that Allen was a good

supervisor, husband, and parent while the two worked

together at Sunland Olive Co. in the 1950s; however, Tassey

admitted that he had only limited contact with Allen after

1959. Similarly, Nadine Lemons, whose father, Donald Black,

worked with Allen at Sunland Olive Co., would have testified

to Allen’s friendliness and generosity to her family; however,

Nadine also saw Allen only off and on after 1959. As of the

time of the evidentiary hearing, she was unaware of Allen’s

confessions to serious crimes. Nadine’s husband, Lonnie,

would have testified similarly to Nadine, but also lacked close

contact with or recent knowledge of Allen.

Lonnie Vaughn, brother of Allen’s ex-wife Helen Sevier,

would have testified before the jury that he knew Allen to be

a hard worker and involved in the church; however, Vaughn

lost contact with Allen in 1957, long before his criminal life

began. Vaughn’s wife, Della Mae, would have testified to her

knowledge of Allen as a pleasant, hard-working person who

had served as a church deacon; however, she lost touch with

Allen when her husband did. The Vaughns’ son, Steve, had

more recent interactions with Allen and could have testified

to Allen’s special relationship with Sevier’s daughter,

Tammy, and with Sevier’s grandmother, Bonnie Nola. Steve

called Allen “naturally likeable” and stated that he and his

children — who had visited with Allen recently while he was

ALLEN v. WOODFORD 981

in prison — would be affected if Allen was executed. Still,

Steve had very limited interaction with Allen between 1960

and 1977, and he was unaware that Allen had admitted to

helping dispose of Mary Sue Kitts’s body.

Betty Boriak, Sevier’s niece who had lived with the family

for a few months as a child and babysat Kenneth and Roger

for several years, would have described Allen’s and Sevier’s

family as close-knit; she stated that she loved Allen and

would be hurt if he was executed. Boriak, however, lost con-

tact with Allen in 1959 or 1960, and did not reconnect until

1977, when the two began exchanging letters. Toni Omstead,

whose parents were Allen’s landlords for a time, would have

testified about instances in which Allen had been generous

and helpful to Omstead’s family; she believed that he had

been a warm, friendly, and courteous person. Omstead, how-

ever, only knew Allen between 1964 and 1970, and she was

unaware that Allen had admitted to committing robberies and

to disposing of Kitts’s body.

Katherine Proctor, the mother of Allen’s daughter-in-law

Kathy, would have told the sentencing jury that Allen was a

friendly, kind, and considerate man and a devoted and gener-

ous grandfather. She would have testified that Allen wel-

comed her daughter Kathy into his family, and that she

confided in Allen because he was an easy person to talk to.

She also would have recounted a specific incident in which

Allen rushed to the hospital with concern when one of his

granddaughters had an asthma attack. Proctor did not know,

however, that Allen had admitted committing armed robberies

and disposing of Kitts’s body, or that Allen’s defense in his

most recent murder and conspiracy trial was to blame Ken-

neth and Kathy for committing the crimes.

Allen’s oldest granddaughter Paula also would have pro-

vided Allen with humanizing mitigation evidence during the

sentencing phase if she had been asked. Paula, who was eight

years old when Allen was arrested in 1977 and thirteen at the

982 ALLEN v. WOODFORD

time of Allen’s 1982 trial, would have testified that Allen was

very affectionate and generous to her. Paula testified, “I know

what kind of person [Allen] is,” and explained that Allen had

“[taken] the fall for something he didn’t do.” Paula did not

know, however, that Allen had admitted committing armed

robberies and disposing of Kitts’s body, or that Allen’s

defense against the 1982 murder and conspiracy charge was

that Paula’s parents had committed the crimes.

Connie Seidel, who knew Allen as her husband’s employer,

would have testified at Allen’s sentencing trial that Allen was

very generous and cared about his employees and their fami-

lies’ well-being. Seidel’s knowledge of Allen was also lim-

ited, however, as she only knew him between 1971 and 1976,

and she did not know that Allen had admitted committing rob-

beries and disposing of Kitts’s body, or that he had been con-

victed of killing Josephine Rocha and Doug White.

A more promising mitigation witness lay in family friend

Chris Sund who, along with her now deceased husband, grew

to know Allen through horse shows, visits to the Appleton

Ranch (where Allen was once employed), and Allen’s visits

to the Sunds’ ranch. Trial counsel did ask Sund to testify in

mitigation, but Sund declined at the time.3 She could have tes-

tified that Allen was particularly helpful to the Sunds when

Chris’s husband became ill, taking care of the Sunds’ horses

and donating blood. Chris Sund last saw Allen in 1975 or

1976, and they continue to correspond occasionally. Sund

knew about much of Allen’s criminal background, distin-

guishing her from most of the other proffered mitigation wit-

nesses; she insisted, however, that this criminal background

was inconsistent with the person she knew Allen to be. Sund

explained her failure to testify at the time of trial, saying that

her husband had been very ill and that it would have been

3

Thus, we include this most favorable evidence in the total picture of

potential mitigation, but do not find trial counsel deficient for having

failed to present Sund.

ALLEN v. WOODFORD 983

“very difficult” to leave him for any period of time. Sund’s

daughter, Maida Lee, reiterated that her mother would have

testified for Allen in 1982 if she had understood the impor-

tance of the testimony. Maida Lee could have testified that

she believed Allen to be a gentle and kind-spirited man who

enjoyed being around children. Maida Lee lost contact with

Allen a couple of years before the Kitts murder, though, and

did not know that Allen had confessed to committing rob-

beries and disposing of Kitts’s body.

Allen has also suggested that Sevier and her daughter,

Tammy, could have served as useful mitigation witnesses if

counsel had investigated that possibility. Indeed, Sevier testi-

fied that she, Kenneth, and Roger cared for Allen and would

not want to see him put to death. Tammy could have testified

that Allen was like a father to her after her biological father

left. However, Department of Justice special agent Ken

O’Farrell would have cast doubt on Sevier’s credibility by

testifying that Sevier complained of receiving a threatening

letter from Allen after their divorce and that Sevier blamed

Allen for her sons’ criminal activities.

The other mitigation witnesses proffered by Allen would

not have proved helpful given their own involvement in

Allen’s criminal enterprise. For example, Roger Allen would

have described Allen’s love as a father, but would also have

been asked about his involvement in his father’s criminal

schemes. In addition, Roger testified that Allen had lied to

him his entire life and claimed not to know that Allen admit-

ted disposing of Kitts’s (Roger’s former live-in girlfriend’s)

body.

ALLEN v. WOODFORD 985

Volume 2 of 2

986 ALLEN v. WOODFORD

Donna Allen’s testimony about Allen’s positive qualities as

a father-in-law and grandfather would also have been

impeachable. Donna claimed to know nothing of Allen’s neg-

ative side or his criminal life; however, Ben Meyer’s girl-

friend, Serise Zinich, was prepared to testify that Donna knew

about Allen’s commission of a K-Mart burglary with Meyer

as it occurred. In addition, police officer Glen Upchurch

would have testified that William Cross reported Donna’s use

in his store of coins stolen by Allen and his associates.

Similarly, the testimony of James Walker about his high

esteem for Allen as an employer in the security business could

have been impeached by testimony that Walker and Kenneth

robbed a Pardini’s Sunnyside together in 1970 or 1971.

[15] To establish prejudice, Allen “must show ‘that there is

a reasonable probability that but for counsel’s unprofessional

errors, the result . . . would have been different.’ ” Williams,

529 U.S. at 394 (quoting Strickland, 466 U.S. at 694). A

“ ‘reasonable probability,’ ” in turn, is “ ‘a probability suffi-

cient to undermine confidence in the outcome.’ ” Id. (quoting

Strickland, 466 U.S. at 694). As explained by the Supreme

Court in Strickland:

When a defendant challenges a death sentence such

as the one at issue in this case, the question is

whether there is a reasonable probability that, absent

the errors, the sentencer — including an appellate

court, to the extent it independently reweighs the

evidence — would have concluded that the balance

of aggravating and mitigating circumstances did not

warrant death.

Strickland, 466 U.S. at 695. We thus agree with the district

court that the question before us is “whether knowledge that

[Allen] could be pleasant would have been enough that even

one juror would have weighed it more heavily than the moun-

tain of aggravating evidence.” Like the district court before

ALLEN v. WOODFORD 987

us, we find that potential mitigation evidence that amounted

to testimony that Allen could be pleasant is simply insuffi-

cient to outweigh all of the aggravating evidence. Accord-

ingly, while counsel erred in failing to investigate and present

the potential mitigation testimony of many family members,

friends, and associates of Allen’s, we cannot conclude that

there is a reasonable probability, had trial counsel presented

the potential mitigation evidence developed during habeas,

that the jury would have weighed the evidence in favor of a

life sentence.

First and foremost, the jury had just convicted Allen of

murdering three people and conspiring to murder four others

while he was already serving a life sentence for yet another

murder. This raw fact is not outweighed by the available miti-

gating evidence because that evidence is entirely bereft of

explanatory or exculpatory attributes, which are at the core of

our belief in the importance of mitigation evidence:

Evidence regarding social background and mental

health is significant, as there is a “belief, long held

by this society, that defendants who commit criminal

acts that are attributable to a disadvantaged back-

ground or to emotional and mental problems, may be

less culpable than defendants who have no such

excuse.”

Douglas v. Woodford, 316 F.3d 1079, 1090 (9th Cir.) (quoting

Boyde, 494 U.S. at 382), cert. denied, 124 S.Ct. 49 (2003). In

Douglas, the mitigation evidence presented was minimal.

Two witnesses testified that Douglas had an aversion to the

sight of blood and several testified as to his non-violent

nature. Id. at 1087. A very generalized sociological history of

the defendant was also introduced. Id. However, the jury did

not hear information about the defendant’s abandonment as a

child, having an abusive alcoholic foster father who locked

him in the closet for hours at a time, scavenging for food,

being beaten and gang-raped as a young man in a Florida jail,

988 ALLEN v. WOODFORD

and possible mental health problems. Id. at 1088. We held

that “[t]he available mitigating evidence that could have been

introduced in Douglas’s trial was precisely the type of evi-

dence that we [had] found critical for a jury to consider when

deciding whether to impose a death sentence.” Id. at 1090.

Similarly, in Silva, where the defendant stood convicted of

abduction, robbery, and murder, trial counsel’s failure to pre-

sent significant evidence regarding the defendant’s abusive

childhood, mental illnesses, organic brain disorders, and sub-

stance abuse “was profoundly prejudicial.” 279 F.3d at 847.

We reasoned that trial counsel’s “failure to investigate Silva’s

background and to prepare evidence relating to his family his-

tory, mental health, and substance abuse problems resulted in

an egregious failure to uncover and present a raft of poten-

tially compelling mitigating evidence.” Id. at 850.

The Supreme Court most recently addressed this issue in

Wiggins, finding:

The mitigating evidence counsel failed to discover

and present in this case is powerful. . . . Wiggins

experienced severe privation and abuse in the first

six years of his life while in the custody of his alco-

holic, absentee mother. He suffered physical tor-

ment, sexual molestation, and repeated rape during

his subsequent years in foster care. The time Wig-

gins spent homeless, along with his diminished men-

tal capacities, further augment his mitigation case.

Petitioner thus has the kind of troubled history we

have declared relevant to assessing a defendant’s

moral culpability.

Wiggins, 123 S. Ct. at 2542. The Court concluded that, “had

the jury been confronted with this considerable mitigating evi-

dence, there is a reasonable probability that it would have

returned with a different sentence.” Id. at 2543.

ALLEN v. WOODFORD 989

[16] We have rarely granted habeas relief based solely

upon humanizing, rather than explanatory, mitigation evi-

dence in the face of extensive aggravating circumstances. In

Mak v. Blodgett, 970 F.2d 614, 619 (9th Cir. 1992) (per

curiam), where the defendant had been convicted of partici-

pating in the murders of thirteen people, we did emphasize the

role that such evidence could play: “Mak’s defense counsel

never placed Mak in the community nor portrayed Mak as a

human being who was a devoted son with family members

who loved him.” While we ultimately granted Mak’s petition

for habeas relief, we never determined whether the prejudice

arising from counsel’s ineffective assistance was sufficient to

grant relief. Rather, we relied on a cumulative-error analysis

that included the erroneous exclusion of highly exculpatory

evidence that implicated a third party in the murder and a jury

instruction that misstated the applicable sentencing law. Id. at

622.

In Mayfield, we placed unique significance on humanizing

mitigation evidence. Mayfield killed a woman and her son for

swearing out an auto theft complaint against him, and then

killed another man who witnessed the event. Mayfield, 270

F.3d at 918-19. Although “[t]he aggravating evidence against

Mayfield was strong,” and counsel had already solicited testi-

mony from a psychiatrist about Mayfield’s childhood diabe-

tes, drug use, and psychological and social problems, we

found counsel prejudicially ineffective for failing to present

the additional available mitigation evidence. Id. at 929-32.

Much of the potential mitigating testimony would have

emphasized that Mayfield was a good, protective brother, a

generous nephew, and not a violent person. Id. at 932. May-

field’s friends and family would have testified that they loved

Mayfield and asked the jury to spare his life. Most, if not all,

of the witnesses offered by Mayfield testified about their con-

temporaneous knowledge of him, and seemed to know about

the darker side of his personality and life. Friends and siblings

understood that Mayfield’s years of drug and alcohol abuse,

and his poorly controlled diabetes, had changed him. Id. at

990 ALLEN v. WOODFORD

931. Other factors played into our assessment of ineffective

assistance as well, however, such as counsel’s failure to pre-

sent experts in endocrinology and toxicology to explain the

chemical impact of Mayfield’s illness and drug abuse. Id. at

932. We concluded:

In light of the quantity and quality of the mitigat-

ing evidence [defense counsel] failed to present at

trial, the duration of the jury’s deliberations, and the

jury’s communication to the trial judge, we are not

confident that, with the additional evidence pre-

sented at the evidentiary hearing, a unanimous jury

would still have returned a sentence of death. If the

jury had considered the testimony of experts in endo-

crinology and toxicology, or of friends and family

members relating additional humanizing stories,

there is a “reasonable probability that the omitted

evidence would have changed the conclusion that the

aggravating circumstances outweighed the mitigat-

ing circumstances and, hence, the sentence

imposed.”

Id. (footnote omitted) (quoting Strickland, 466 U.S. at 700).

[17] By contrast, the mitigation evidence proffered by

Allen, which consisted primarily of testimony that at some

points in his life Allen had been nice to some people and that

some people cared for him, is not of the same “quantity and

quality” as that which supported our decision in Mayfield, and

could not have “humanized” him during the time frame of the

murder conspiracy at issue. The nature and quality of Allen’s

proffered mitigation testimony also removes this case from

the realm of evidence which was found potentially persuasive

to a jury in Douglas, Silva and Wiggins. None of the testi-

mony is exculpatory, nor does it diminish Allen’s culpability

for any of his crimes in the spree which the evidence before

the jury showed began in the 1970s.4 None of the testimony

4

Allen himself has indicated that his life of crime began much earlier.

ALLEN v. WOODFORD 991

portrays a person whose moral sense was warped by abuse,

drugs, mental incapacity, or disease or who acted out of pas-

sion, anger or other motive unlikely to reoccur. Moreover,

while Allen’s proffered witnesses could have helped to

humanize him somewhat, as a rule their knowledge of Allen

was neither deep nor contemporaneous with his crimes. Those

potential witnesses who knew Allen best were highly

impeachable due to their involvement at his behest in his

criminal activities.

Allen also points out that we recently granted habeas relief

where the jury had been instructed not to consider “significant

evidence related to [the defendant’s] conduct during the

period of his prior . . . incarceration and to his ability to con-

form his behavior to societal norms should he be confined

within a structured prison environment,” and thus was not

allowed to consider “evidence . . . that if granted life without

parole, [the defendant] would adapt well to prison life, would

make a positive contribution to the welfare of others, and

would not pose a future danger to the guards or the other

inmates.” Belmontes v. Woodford, 350 F.3d 861, 901 (9th Cir.

2003). Allen contends that this holding demonstrates the

importance of non-exculpatory mitigation evidence such as

that which his counsel failed to offer at trial. Belmontes is dis-

tinguishable, however, because the defendant there proffered

meaningful evidence demonstrating his high likelihood of

behaving well in prison, as well as evidence of a difficult

childhood, in the absence of any strong aggravating factors:

[W]e are convinced that the instructional error in this

case, which prevented the jury from considering and

giving effect to Belmontes’ most important mitiga-

tion evidence, had a substantial and injurious effect

on the jury’s verdict. At the penalty phase of this

trial the aggravating evidence was not strong. . . .

The prosecutor candidly told the jury that there was

not a lot in the way of aggravating evidence. He

asked the jury to return a death sentence because of

992 ALLEN v. WOODFORD

the circumstances of the crime itself. Yet the crime,

though shocking and deplorable, was in essence a

robbery gone wrong. The murder, was not pre-

planned, nor did it involve kidnapping, rape, torture,

multiple victims, or any of the other especially hei-

nous elements that usually are present when a jury

votes for the ultimate penalty. In short, the . . . mur-

der was of the kind that generally does not result in

a death penalty.

Id. at 906-07.

Here, the evidence in aggravation was overwhelming.

Although there was evidence that Allen was kind at times to

some people, he was also, at least with respect to some prof-

fered witnesses, simultaneously controlling and calculated in

organizing his crime family and robbing and murdering multi-

ple victims. In Wiggins, the Supreme Court explained that,

“[i]n assessing prejudice, we reweigh the evidence in aggra-

vation against the totality of available mitigating evidence.”

123 S. Ct. at 2542. We have denied habeas claims of ineffec-

tive assistance of counsel where aggravating factors were

extensive. In Campbell v. Kincheloe, 829 F.2d 1453 (9th Cir.

1987), where the defendant sought out, beat, strangled, and

killed a woman who had testified against him, and then cut

the throats of her daughter and another witness, we held that

such aggravating circumstances outweighed the potential mit-

igation evidence of the defendant’s background, childhood,

and family relationships, even assuming that such mitigation

testimony did not open the door to rebuttal evidence. Id. at

1464. Similarly, in Gerlaugh v. Stewart, 129 F.3d 1027 (9th

Cir. 1997), where the defendant was a probationer who com-

mitted a savage robbery and murder intended in part to “save

himself from prison,” we found that the defendant was not

prejudiced by his counsels’ failure to introduce evidence that

he had “been kind to his elders, to dogs, and to rodents.” Id.

at 1042. In Woodford v. Visciotti, 537 U.S. 19 (2002) (per

curiam), trial counsel failed to present evidence of Visciotti’s

ALLEN v. WOODFORD 993

troubled family background, which included “his being

berated, being markedly lacking in self-esteem and depressed,

having been born with club feet, having feelings of inade-

quacy, incompetence, inferiority, and the like, moving 20

times while he was growing up, and possibly suffering [from]

a seizure disorder.” Id. at 26 (internal quotation marks omit-

ted). The United States Supreme Court found it not unreason-

able for the California Supreme Court to hold that the

circumstances of the crime, “a cold-blooded execution-style

killing of one victim and attempted execution-style killing of

another, both during the course of a preplanned armed rob-

bery,” coupled with the aggravating evidence of prior

offenses, “the knifing of one man, and the stabbing of a preg-

nant woman as she lay in bed trying to protect her unborn

baby,” were so severe that Visciotti suffered no prejudice

from trial counsel’s inadequacy. Id.

After weighing the total potential mitigating evidence

against the evidence in aggravation, we are compelled to con-

clude that every juror would have reached only one result.

Allen had a long history of orchestrating and committing vio-

lent robberies and burglaries. He masterminded eight armed

robberies; among his victims were grocery clerk Lee

McBride, who was shot and sustained permanent damage to

his nervous system, and K-Mart employee John Attebery,

who was permanently disabled from being shot in the chest.

Next, Allen was convicted of directing the murder of Mary

Sue Kitts, his own son’s live-in girlfriend. This murder was

motivated by Allen’s oft-spoken hatred for “rats.” Upon his

conviction for conspiracy and the murder of Mary Sue Kitts,

Allen plotted from prison the murder of those who had testi-

fied to put him there. Allen demonstrated both a lasting hatred

for those who had “ratted” him out and an ability to reach

beyond prison walls in seeking his revenge. By conspiring

and orchestrating the murders of the witnesses against him,

Allen destroyed several lives. Moreover, by attacking the wit-

nesses against him, Allen struck the greatest blow possible

upon our criminal justice system. Meanwhile, Allen has

994 ALLEN v. WOODFORD

expressed no remorse for the crimes that he committed. Given

the nature of Allen’s crimes, sentencing him to another life

term would achieve none of the traditional purposes underly-

ing punishment: incapacitation, deterrence, retribution, or

rehabilitation. See Ewing v. California, 123 S. Ct. 1179, 1187

(2003). The rationale for incapacitation is to allow society to

“protect itself from persons deemed dangerous because of

their past criminal history.” 1 W. LaFave & A. Scott, Substan-

tive Criminal Law 38 § 1.5 (2003). Incapacitation is thus used

to justify execution “for those offenders believed to be

beyond rehabilitation.” Id. By committing a capital crime

while having already been maximally punished and while

behind walls thought to protect society, Allen has proven that

he is beyond rehabilitation and that he will continue to pose

a threat to society.

The Supreme Court deems defendants who have committed

murder while serving a life term in prison unique among capi-

tal defendants. In Lockett v. Ohio, 438 U.S. 586 (1978), the

Supreme Court “express[ed] no opinion as to whether the

need to deter certain kinds of homicide would justify a man-

datory death sentence as, for example, when a prisoner — or

escapee — under a life sentence is found guilty of murder.”

Id. at 605 n.11 (emphasis added). The Court resolved its

ambivalence in favor of such defendants in Sumner v. Shu-

man, 483 U.S. 66 (1987); however, that decision was prem-

ised on the fact that a capital murder committed in prison

could involve a variety of circumstances, reflecting various

levels of culpability. “Just as the level of an offender’s

involvement in a routine crime varies, so too can the level of

involvement of an inmate in a violent prison incident.” Id. at

79. Thus, a life prisoner such as Shuman could conceivably

commit a capital crime arising out of a violent prison confron-

tation, id., or, as here, the crime could arise out of calculation

and manipulation. The especially aggravating circumstances

of Allen’s triple-murder and conspiracy are those for which

the Supreme Court envisions the harshest penalty.

ALLEN v. WOODFORD 995

[18] Because Allen orchestrated the brutal murder of wit-

nesses while already serving a life term in prison, expressed

no remorse for any of his crimes, and supports his claim with

only the testimony of witnesses lacking contemporaneous or

complete knowledge of him, we hold that the aggravating fac-

tors surrounding Allen’s commission of triple-murder and

conspiracy outweigh the total available mitigation evidence.

Thus, although Allen’s counsel was deficient in failing to

thoroughly investigate and present mitigation evidence in the

penalty phase of Allen’s trial, that deficiency does not under-

mine our confidence in the jury’s verdict. We do not hold that

humanizing, non-exculpatory evidence can never be enough

to establish prejudice. Rather, we simply hold that the quality

and quantity of the particular evidence offered by Allen, in

light of the heinous nature of his crimes, does not establish

prejudice.

B. The Jury’s Sentencing Power

[19] Allen contends that the trial court’s sentencing instruc-

tion, combined with the prosecutor’s closing statement, mis-

led the jury as to its sentencing power and arbitrarily denied

him an individualized sentencing determination. We disagree.

The trial court issued the following standard instruction:

After having heard all of the evidence, and after

having heard and considered the arguments of coun-

sel, you shall consider, take into account and be

guided by the applicable factors of aggravating and

mitigating circumstances upon which you have been

instructed.

If you conclude that the aggravating circum-

stances outweigh the mitigating circumstances, you

shall impose a sentence of death. However, if you

determine that the mitigating circumstances out-

weigh the aggravating circumstances, you shall

996 ALLEN v. WOODFORD

impose a sentence of confinement in the State prison

for life without the possibility of parole.

CALJIC No. 8.84.2.

Allen acknowledges that any “claim that the ‘shall impose’

language of CALJIC 8.84.2 unconstitutionally prevents ‘indi-

vidualized assessment’ by the jury is . . . without merit.”

Boyde, 494 U.S. at 377; see also Blystone v. Pennsylvania,

494 U.S. 299, 306-07 (1990). He argues, however, that the

jury instruction was rendered unconstitutional by the prosecu-

tor’s closing argument emphasis of the mandatory nature of

the instruction. The Boyde Court acknowledged that prosecu-

torial argument could “have a decisive effect on the jury,” 494

U.S. at 384; however, the Court also noted that “prosecutorial

misrepresentations . . . are not to be judged as having the

same force as an instruction from the court,” and that “argu-

ments of counsel, like the instructions of the court, must be

judged in the context in which they are made,” id. at 384-85.

Allen objects in particular to the following argument of the

prosecutor:

If you conclude that the aggravating evidence out-

weighs the mitigating evidence, you shall return a

death sentence. Shall; not may, not might, not

maybe. It is very explicit. If the aggravating evi-

dence outweighs the mitigating evidence, you shall

return a verdict of death.

When considered in context, however, there is no reasonable

likelihood that the prosecutor’s statements rendered the jury’s

consideration of the trial court instruction unconstitutional.

See id. at 383. Indeed, the prosecutor spent much of his clos-

ing argument discussing both the aggravating and the mitigat-

ing evidence, specifically asking the jury to think about how

such evidence should be weighed. The California Supreme

Court’s findings that “the prosecutor not once suggested the

ALLEN v. WOODFORD 997

weighing process was a mechanical function” and “did noth-

ing to mislead the jury about its weighing discretion” are sup-

ported by the record. As the prosecutor did not mislead the

jury regarding its discretion, Allen was denied neither a fed-

eral right nor a state-created liberty interest.

C. The Trial Court’s Inflation of Special Circumstances

Findings

[20] We agree with the district court that the trial court’s

error in counting the special circumstances was harmless. In

California, a finding of even one special circumstance quali-

fies a defendant for the death penalty, and special circum-

stances are considered in the penalty phase as aggravating

factors. Cal. Penal Code §§ 190.2, 190.3. Here the jury prop-

erly found three categories of special circumstances going

into the penalty phase: multiple murder, witness killing, and

prior murder conviction. However, the jury found six

multiple-murder special circumstances (applying two counts

of multiple murder to each of the three murders of which

Allen was convicted); two witness-killing special circum-

stances (by relying on two different witness-killing theories);

and three prior-murder special circumstances (applying one

prior-murder count to each of the three murder convictions).

The jury thus technically considered eleven special circum-

stances rather than three.

No one disputes that the trial court erred. This error, how-

ever, did not substantially and injuriously affect the jury’s

verdict. Brecht, 507 U.S. at 629. Allen’s actual conduct was

never inflated; the jury had before it all the relevant facts from

which any one special circumstance, supporting the death

penalty, could be formed. The jury’s weighing of aggravating

and mitigating factors in California “is ‘a mental balancing

process,’ but not one that involves a ‘mechanical counting of

factors’ on either side of some imaginary scale, or ‘the arbi-

trary assignment of “weights’ ” to any factor.” People v. Baci-

galupo, 6 Cal. 4th 457 (1993) (quoting People v. Brown, 40

998 ALLEN v. WOODFORD

Cal. 3d 512, 541 (1985)). Instead “the special circumstances

serve to “ ‘guide’ ” and “ ‘channel’ ” jury discretion ‘by

strictly confining the class of offenders eligible for the death

penalty.’ ” Id. at 467 (quoting Brown, 40 Cal. 3d at 539-40).

And the section 190.3 aggravating factors serve to “ ‘direct

the sentencer’s attention to specific, provable, and commonly

understandable facts about the defendant and the capital crime

that might bear on [the defendant’s] moral culpability.’ ” Id.

at 476 (quoting People v. Tuilaepa, 4 Cal. 4th 569, 595 (1992)).5

Moreover, we agree with the California Supreme Court’s

harmless-error analysis, which reflects the prosecutor’s rela-

tive inattention to the special circumstances considered as

aggravating factors:

In view of the fact that . . . we are confident the jury

understood the scope of its sentencing role, and that

it knew of its exclusive discretion to determine

whether death is appropriate in this case — and in

the face of the People’s overwhelming penalty evi-

dence, and the comparatively slight emphasis put on

the special circumstances as aggravating factors and

concomitant major emphasis on defendant’s present

and former convictions and uncharged crimes as

aggravating factors - it cannot be said there is any

reasonable possibility the complained-of error

affected the penalty verdict.

Allen, 42 Cal. 3d at 1282-83; see also Williams v. Calderon,

52 F.3d 1465, 1480 (9th Cir. 1995) (state court found errone-

ous charging of six multiple-murder special circumstances

rather than one to be harmless); Bonin v. Calderon, 59 F.3d

5

The State contends that several of Allen’s claims, including this one,

are barred by Teague v. Lane’s rule of non-retroactivity. See 489 U.S. 288

(1989). We reject the State’s Teague-related arguments, except as they

relate to Allen’s claim that the trial court should have conferred immunity

upon certain guilt phase witnesses. See supra p. 968.

ALLEN v. WOODFORD 999

815, 849 (9th Cir. 1995) (state court found erroneous charging

of fourteen multiple-murder circumstances rather than one to

be harmless). We agree with the state court’s finding of harm-

lessness, and affirm the district court’s denial of relief.

D. The Double- and Triple-Counting of Allen’s Prior

Crimes as Aggravating Factors

Allen contends that the aggravating factors presented to the

jury permitted the jury to double- and triple-count his prior

crimes and thus undermined the jury’s death verdict. We hold

that the error was harmless.

Allen asserts that the presentation of the following factors

allowed for the inappropriate double- and triple-counting:

[(a) T]he existence of any special circumstances

admitted or thought to be true, [(b)] the presence or

absence of criminal activity by the defendant which

involved the use or attempted use of force or vio-

lence, [and (c)] the presence or absence of any fel-

ony conviction.

The State contends that the jury’s consideration of these fac-

tors could not have been improper because each deals with a

different attribute of Allen’s present crimes and previous

criminal activity. According to the State, “[n]one of these fac-

tors necessarily subsume[s] each other.”

Considered individually, aggravating factors (a), (b), and

(c) are each valid. The Supreme Court upheld the validity of

factors (a) and (b) in Tuilaepa v. California, 512 U.S. 967

(1994), concluding that factor (a) concerned the circum-

stances of the immediate crime being punished and factor (b)

addressed “the defendant’s prior criminal activity.” Id. at 976.

The Court also “[r]el[ied] on the basic principle that a factor

is not unconstitutional if it has some ‘common-sense core of

meaning . . . that criminal juries should be capable of under-

1000 ALLEN v. WOODFORD

standing.’ ” Id. at 973 (quoting Jurek v. Texas, 428 U.S. 262,

279 (1976)).

Here, however, the trial court’s instructions and the prose-

cutor’s argument together encouraged the jury to consider

Allen’s prior criminal activities under all of the above three

factors. These aggravating factors were thus effectively sub-

sumed within each other. As expressed by the Tenth Circuit

in United States v. McCullah, 76 F.3d 1087 (10th Cir. 1996):

Such double counting of aggravating factors,

especially under a weighing scheme, has a tendency

to skew the weighing process and creates the risk

that the death sentence will be imposed arbitrarily

and thus, unconstitutionally. . . . [W]hen the same

aggravating factor is counted twice, the defendant is

essentially condemned twice for the same culpable

act, which is inherently unfair.

Id. at 1111 (internal quotation marks omitted).

The State misplaces reliance on Jones v. United States, 527

U.S. 373 (1999), and United States v. Luna-Herrera, 149 F.3d

1054 (9th Cir. 1998). Jones is distinguishable because “the

factors as a whole [in that case] were not duplicative.” 527

U.S. at 399. There, one factor asked whether the victim was

especially vulnerable to the petitioner’s attack, and the other

contemplated the victim’s personal traits and the effect of the

crime on her family. Id. at 400. Luna-Herrera involved a

completely different sentencing context altogether. There, we

held that the aggravated felony serving as a basis for the

increase in a defendant’s base offense level could also be used

in calculating that defendant’s criminal history score, and that

the prior felony conviction forming part of the basis for the

defendant’s deportation was not “relevant conduct” with

respect to the instant conviction for purposes of applying the

sentencing guidelines. Luna-Herrera, 149 F.3d at 1055-56.

ALLEN v. WOODFORD 1001

Moreover, we suggested the impropriety of overlapping

aggravating factors in Bonin, 59 F.3d at 848. There, we

rejected the petitioner’s double-counting claim, concluding it

had been foreclosed by Tuilaepa’s upholding of aggravating

factors (a) and (b). Id. Our decision in Bonin, however, pre-

supposed that “paragraph (a) obviously refers to the crimes

for which the defendant has been convicted [and] paragraph

(b) is intended to refer to crimes for which the defendant has

not been convicted.” Id. Such is not the case here, where the

jury was encouraged to consider Allen’s prior crimes under

factors (a), (b), and (c).

[21] Because “California is . . . a ‘weighing’ state,” Silva,

279 F.3d at 829 n.1, we review the improper double-counting

of aggravating factors under a “constitutional harmless-error

analysis . . . .” Hoffman v. Arave, 236 F.3d 523, 541 (9th Cir.

2001). We conclude that the error here was harmless. As

noted by the district court, there is no support in the record

“for the assumption that the jury mechanically doubled the

weight of the prior felonies or tripled the weight of the Kitts

murder because it fit under more than one factor.” Although

the prosecutor did ask the jury to consider Allen’s prior

crimes under multiple aggravating factors, he did not ask the

jury to merely add up those factors; instead, he emphasized

different ways that the jury could consider and quantify them.

In addition, the severity and sheer number of Allen’s prior

crimes convince us that the jury’s consideration of the crimes

just once in the weighing of aggravating and mitigating fac-

tors would have yielded the same verdict. The double- and

triple-counting error is thus harmless.6

6

As noted by the district court, because the state court did not perform

a harmless error analysis of this claim, it is unclear whether the Brecht

“substantial and injurious effect” standard or the state “harmless beyond

a reasonable doubt” standard applies. See Chapman v. California, 386

U.S. 18 (1967). The Circuits are split on this issue, and neither we nor the

Supreme Court has directly addressed it; however, both this Court and the

Supreme Court have applied the Brecht standard without consideration of

1002 ALLEN v. WOODFORD

E. Preclusion of Testimony Regarding Allen’s

Conforming Conduct in County Jail

[22] Allen contends that the trial court’s preclusion of cer-

tain testimony by correctional officer Delma Graves deprived

him of his right to “place before the sentencer relevant evi-

dence in mitigation of punishment.” Skipper v. South Caro-

lina, 476 U.S. 1, 4 (1986). Although the trial court likely erred

in this regard, such error was harmless.

The trial court sustained the prosecutor’s relevance objec-

tion to defense counsel’s question asking whether Allen had

caused trouble, other than the attack on Glenn Bell, while

incarcerated in the Fresno County Jail. In Skipper, where the

trial court excluded from the sentencing hearing testimony

about the petitioner’s good behavior for the more than seven

months he spent in jail awaiting trial, the Supreme Court con-

cluded that “[t]he exclusion by the state trial court of relevant

mitigating evidence impeded the sentencing jury’s ability to

carry out its task of considering all relevant facts of the char-

acter and record of the individual offender” and that “[t]he

resulting death sentence [could not] stand.” Id. at 8; see also

Hitchcock v. Dugger, 481 U.S. 393, 398-99 (1987) (“We

think it could not be clearer that the advisory jury was

instructed not to consider, and the sentencing judge refused to

consider, evidence of nonstatutory mitigating circumstances,

and that the proceedings therefore did not comport with the

requirements of Skipper.”).

The State’s citation to Pizzuto v. Arave, 280 F.3d 949 (9th

Cir. 2002), is inapposite. In Pizzuto, the mitigating evidence

the extent of state court review. See O’Neal v. McAninch, 513 U.S. 432

(1995); Rice v. Wood, 77 F.3d 1138, 1144 (9th Cir. 1996) (en banc); Wil-

liams, 52 F.3d at 1476; Hegler v. Borg, 50 F.3d 1472, 1474, 1478 (9th Cir.

1995); Lee v. Marshall, 42 F.3d 1296 (9th Cir. 1994) (per curiam); Chris-

tian v. Rhode, 41 F.3d 461 (9th Cir. 1994). We need not reach this issue,

however, because here the error is harmless under either standard.

ALLEN v. WOODFORD 1003

included information not only about Pizzuto’s good job per-

formance, but also about his “major misconducts.” Id. at 966.

Counsel thus decided not to proffer that evidence. Id. at 967.

Here, Graves had already testified as to Allen’s misconduct;

as far as the record demonstrates, Graves’s further testimony

would have offered no new negative information.

The testimony that Allen’s counsel sought to elicit from

Graves would not, however, have made a substantial showing

of Allen’s good behavior. Graves’s testimony would not have

overcome the many aggravating factors in this case; indeed,

Graves had just testified about Allen’s organization of the

assault on Bell. Moreover, Allen had been found guilty of

orchestrating the murder of witnesses from prison. Under

either the Chapman or the Brecht standard, the trial court’s

error was harmless.

F. Use of CALJIC Instruction No. 2.11.5

[23] Given the totality of the trial court’s instructions to the

jury, the trial court’s instruction not to consider the prosecu-

tion status of others involved in Allen’s aggravation crimes

was not constitutional error.

Pursuant to CALJIC No. 2.11.5, the trial court instructed

the sentencing jury:

There has been evidence in this case indicating

that a person, other than the defendant, was or may

have been involved in the crimes of which the defen-

dant is now alleged to have committed.

You must not discuss or give any consideration as

to why the other person is not being prosecuted or

whether he has been or will be prosecuted.

In light of the Use Note to CALJIC No. 2.11.5, which reads

“[t]his instruction is not to be used if the other person is a wit-

1004 ALLEN v. WOODFORD

ness for either the prosecution or defense,” the trial court was

mistaken in using the instruction in the penalty phase; how-

ever, that mistake did not rise to the level of constitutional

error.

“When considering an allegedly erroneous jury instruction

in a habeas proceeding, an appellate court first considers

whether the error in the challenged instruction, if any,

amounted to ‘constitutional error.’ ” Morris v. Woodford, 273

F.3d 826, 833 (9th Cir. 2001) (quoting Calderon v. Coleman,

525 U.S. 141, 147 (1998)). To determine constitutional error,

an appellate court asks whether there is a reasonable

likelihood that the jury has applied the challenged

instruction in a way that prevents the consideration

of constitutionally relevant evidence. That inquiry

also can be described as having two parts: (1)

whether there is a reasonable likelihood that the jury

understood an assertedly ambiguous instruction to

mean what the defendant suggests it means; and (2)

if so, whether the instruction, so understood, was

unconstitutional as applied to the defendant.

Id. (citation and internal quotation marks omitted).

Allen fails to get past the first hurdle. The trial court issued

several other instructions which made it clear that the jury

was to consider the motivation of the several witnesses

against Allen. These instructions addressed witness bias,

accomplice testimony, and the fact that the jury must consider

the court’s instructions as a whole. See id. at 834 (“A single

instruction is not viewed in isolation, but in the context of the

overall charge.” (internal quotation marks omitted)). Given

the totality of the trial court’s instructions, the jury could not

reasonably have understood the instruction at issue to forbid

it from considering witnesses’ motivation and bias.

ALLEN v. WOODFORD 1005

G. The Prosecutor’s Closing Argument

[24] Allen contends that several instances of prosecutorial

misconduct during closing argument “so infected the trial

with unfairness as to make the resulting [judgment for death]

a denial of due process.” See Darden, 477 U.S. at 181 (inter-

nal quotation marks omitted). We hold that any prosecutorial

misconduct in these circumstances was harmless.7

1. Commentary on Allen’s Demeanor

After describing Allen as the mastermind behind all the

charged crimes, the prosecutor stated, “[h]e is not listening to

any of this, of course.” It is unclear whether this commentary

on Allen’s demeanor during the trial’s sentencing phase was

improper. Comments on a non-testifying defendant’s demea-

nor are inappropriate during the guilt phase because character

is not at issue. Schuler, 813 F.2d at 980-81; People v. Heish-

man, 45 Cal. 3d 147, 197 (1988). Commentary upon demea-

nor may be appropriate in the penalty phase, however, where

the defendant’s credibility is at issue. Id. at 197

(“[P]rosecutor’s references to defendant’s facial demeanor . . .

made at a penalty trial in which defendant had placed his own

character in issue as a mitigating factor . . . [were] proper

. . . .”).

Even assuming that this comment amounted to misconduct,

however, an issue we need not decide, any error was insignifi-

cant in relation to the whole of the sentencing phase and the

prosecutor’s closing argument; nor was it particularly inflam-

7

The State contends that the district court should not have addressed

prosecutorial misconduct because Allen’s counsel did not object at trial.

While this is generally true, the district court correctly noted that federal

courts usually disregard a state procedural default if the state court

chooses to do so. As the California Supreme Court denied Allen’s pro-

secutorial misconduct claim on the merits, the district court was not barred

from considering it. See Harmon v. Ryan, 959 F.2d 1457, 1461 (9th Cir.

1992).

1006 ALLEN v. WOODFORD

matory. The comment was not sufficiently prejudicial to sup-

port our finding a due process violation. See Darden, 477 U.S.

at 181; Donnelly, 416 U.S. at 639.

2. Implication that Allen and Counsel Conspired to

Retaliate Against Witnesses

During his closing argument, the prosecutor implied that

defense counsel’s questioning of witnesses was meant to

secure information that would be used to identify and retaliate

against those witnesses later. The implicating comment was

improper; a prosecutor “may not make comments calculated

to arouse the passions or prejudices of the jury.” United States

v. Leon-Reyes, 177 F.3d 816, 822 (9th Cir. 1999); see also

United States v. Koon, 34 F.3d 1416, 1443 (9th Cir. 1994) (“A

prosecutor may not urge jurors to convict a criminal defen-

dant in order to protect community values, preserve civil

order, or deter future law breaking.”), aff’d in part and rev’d

in part on other grounds, 518 U.S. 81 (1996). However, in

view of the overwhelming evidence of Allen’s guilt and the

trial court’s instruction that the statements of counsel were not

evidence, the prosecutor’s comment was not so prejudicial as

to render Allen’s sentencing trial fundamentally unfair. Dar-

den, 477 U.S. at 181.

3. Improper Characterizations of Allen

We agree with Allen that the prosecutor’s comparison of

him to Adolf Hitler was improper.8 Again, however, this ref-

erence did not render the penalty phase unfair. The reference

to Hitler was pure argument. Moreover, the trial court admon-

ished the jury not to consider such statements as evidence. As

explained in United States v. North, 910 F.2d 843 (D.C. Cir.)

(per curiam), withdrawn in part on other grounds, 920 F.2d

940 (D.C. Cir. 1990) (per curiam), “[t]o suspect that the refer-

8

We disagree that the comparison of Allen to an organized crime “god-

father” was improper, given his own description of himself at trial.

ALLEN v. WOODFORD 1007

ence to Hitler swayed the jury on a close and critical issue

would underestimate the common sense that we properly attri-

bute to the jury.” Id. at 895.

4. Focus on the Victims and Family Impact

While portions of the prosecutor’s argument about the vic-

tims and their families were emotional, these references were

not improperly inflammatory. Even if the prosecutor’s com-

mentary were evidence, which it was not, the Supreme Court

explained in Payne v. Tennessee, 501 U.S. 808, 823-25

(1991), that there is no per se Eighth Amendment bar to vic-

tim impact evidence: “In the majority of cases, and in this

case, victim impact evidence serves entirely legitimate pur-

poses.” Id. at 825. We reiterated in Gretzler v. Stewart, 112

F.3d 992, 1009 (9th Cir. 1997), that “[e]vidence about a vic-

tim’s characteristics and the impact of the murder on the vic-

tim’s family is relevant and admissible at a death penalty

sentencing proceeding. Admission of such evidence will only

be deemed unconstitutional if it is so unduly prejudicial that

it renders the sentence fundamentally unfair.” (Citation omit-

ted); cf. Fields v. Woodford, 281 F.3d 963, 978-79 (9th Cir.)

(disapproving of victim impact evidence but refraining from

reversing the jury verdict where the evidence was not prejudi-

cial), amended on other grounds, 315 F.3d 1062 (9th Cir.

2002); People v. Miranda (In re Miranda), 44 Cal. 3d 57, 113

(1987). Here, the prosecutor’s statements about the victims

and their families did not render the sentencing phase funda-

mentally unfair.

5. Statements Regarding the Jury’s Responsibility

The prosecutor’s argument did not unacceptably diminish

the responsibility of the jury in sentencing Allen. The

Supreme Court narrowly defined such error in Romano v.

Oklahoma, 512 U.S. 1 (1994), as

relevant only to certain types of comment — those

that mislead the jury as to its role in the sentencing

1008 ALLEN v. WOODFORD

process in a way that allows the jury to feel less

responsible than it should for the sentencing deci-

sion. Thus, ‘[t]o establish [such a] violation, a defen-

dant necessarily must show that the remarks to the

jury improperly described the role assigned to the

jury by local law.’

Id. at 9 (citation and internal quotation marks omitted). The

prosecutor here did not improperly describe the jury’s role.

Rather, he seemed to counter defense counsel’s suggestion

that the jury would be committing a moral wrong by sentenc-

ing Allen to death. The prosecutor’s argument that Allen was

ultimately responsible for his actions and that the jury must

follow the law were not inappropriate and provide no basis for

relief.

H. The Trial Court’s Conversion of Inapplicable

Mitigation Factors into Aggravating Factors

[25] The trial court’s improper finding of aggravating fac-

tors in reviewing the jury’s verdict was also harmless error.

California law directs the trial judge to automatically and

independently review a jury’s sentencing verdict to determine

whether it is contrary to the law or to the evidence presented.

Cal. Penal Code § 190.4(e). In conducting this review, the

trial court converted each of the following factors into aggra-

vating factors:

Factor (d) — Whether or not the offense was com-

mitted while the defendant was under the influence

of extreme mental or emotional disturbance;

Factor (e) — Whether or not the victim was a partic-

ipant in the defendant’s homicidal conduct or con-

sented to the homicidal act;

Factor (f) — Whether or not the offense was com-

mitted under circumstances which the defendant rea-

ALLEN v. WOODFORD 1009

sonably believed to be a moral justification or

extenuation for his conduct;

Factor (g) — Whether or not the defendant acted

under extreme duress or under the substantial domi-

nation of another person;

Factor (i) — The age of the defendant at the time of

the crime;

Factor (j) — Whether or not the defendant was an

accomplice to the offense and his participation in the

commission of the offense is relatively minor; and

Factor (k) — Any other circumstance which extenu-

ates the gravity of the crime even though it is not a

legal excuse for the crime.

The trial court expressly concluded that the mitigating cir-

cumstances addressed in the above factors did not apply to

Allen’s case and converted each to an aggravating factor. As

reasoned by the California Supreme Court, however, the

absence of mitigating circumstances under these factors

should not be considered aggravating:

“[A]ggravation” is by definition a circumstance

above and beyond the essential constituents of a

crime which increases its guilt or enormity or adds

to its injurious consequences. Mitigating circum-

stances, on the other hand, are ones which although

not constituting an excuse for or justification of the

crime, may be considered as extenuating or reducing

the degree of moral culpability. Thus, the absence of

mitigation would not automatically render the crime

more offensive than any other murder of the same

general character.

Several of the statutory mitigating factors are par-

ticularly unlikely to be present in a given case. (See,

1010 ALLEN v. WOODFORD

especially, § 190.3, subds. (e) and (f) . . . .) To per-

mit consideration of the absence of these factors as

aggravating circumstances would make these aggra-

vating circumstances automatically applicable to

most murders.

People v. Davenport, 41 Cal. 3d 247, 289 (1985) (internal

citations omitted). While courts have expressly held that fac-

tor (i) regarding age can serve as either an aggravating or mit-

igating circumstance, Tuilaepa, 512 U.S. at 977; Bonin, 59

F.3d at 848, the trial court erred in applying the remainder of

the above factors as aggravators even though the absence of

the specified mitigating circumstances did not render Allen’s

crime more offensive than other crimes of the same nature.

This error, however, does not undermine our confidence in

the jury’s verdict. The trial court’s review merely ensured that

the jury’s death verdict was not contrary to the weight of the

evidence. Even without these factors, extensive aggravating

evidence supported the jury’s verdict. Due to the limited

nature of the trial court’s query, see People v. Lang, 49 Cal.

3d 991, 1045 (1989), and the existence of many valid aggra-

vating factors, this error was not prejudicial.

I. The Trial Court’s Consideration of Presentence Reports

in its Modification Decision

Although the trial court erred as a matter of state law by

considering in its review of the jury’s verdict presentence

reports that had not been considered by the jury, that error

neither prejudiced Allen nor denied him his Eighth Amend-

ment or due process rights.

While California Penal Code § 190.4 limits the trial court

to review of the evidence before the jury in its automatic con-

sideration of whether to modify the verdict, the trial court

here requested and reviewed presentence reports prepared by

the probation officer. These reports contained evidence, such

ALLEN v. WOODFORD 1011

as letters from the victims’ families and a recommendation of

death by the probation officer, that the jury had never consid-

ered.

The record demonstrates, however, that the trial court’s

error was harmless. In its decision on reconsideration of the

jury’s verdict, the trial court explained its analysis as to each

of the § 190.3 factors and only once referred to information

found in the presentence report and not elsewhere in the evi-

dence considered by the jury. That one instance concerned the

presentence report’s determination that Allen was born on

June 16, 1930. We affirm the district court’s reasoning that

“[t]he evidence of [Allen’s] age can hardly be considered

prejudicial to [him] and was, in any event, generally before

the jury.”

J. Lack of Interproportionality Review

[26] We find no merit in Allen’s claim that the State’s lack

of “intercase proportionality review” violated his due process

and equal protection rights.

Allen’s claim is premised on California’s requirement that

the Board of Prison Terms review every sentence imposed

under the Determinate Sentencing Law to ascertain its propor-

tionality with other sentences, and the lack of a comparable

requirement in the capital sentencing scheme. Allen’s due

process argument is foreclosed by the Supreme Court’s hold-

ing in Pulley v. Harris, 465 U.S. 37, 43-46 (1984), that nei-

ther the Eighth Amendment nor due process requires

comparative proportionality review in imposing the death

penalty. The California Supreme Court has agreed that “nei-

ther the federal nor the state Constitution compels compara-

tive sentence review.” People v. Sanders, 51 Cal. 3d 471, 529

(1990); see also Lang, 49 Cal. 3d at 1045. To the extent that

Allen’s equal protection claim survives the above holdings,

we agree with the California Supreme Court that defendants

sentenced under the Determinate Sentencing Law are not sim-

1012 ALLEN v. WOODFORD

ilarly situated to defendants sentenced in the capital system.

See Allen, 42 Cal. 3d at 1286-88. We thus reject this claim as

a basis for habeas relief.

V. Cumulative Error

[27] Allen argues that when considered cumulatively, the

errors committed by the trial court, prosecutor, and defense

counsel in both the guilt and penalty proceedings prejudiced

him sufficiently to undermine confidence in the jury’s ver-

dicts. See Karis v. Calderon, 283 F.3d 1117, 1132 (9th Cir.

2002), cert. denied, 123 S.Ct. 2637 (2003); Mak, 970 F.2d at

622. Even considered cumulatively, though, these errors are

not sufficiently prejudicial to overcome the overwhelming

evidence, derived from numerous sources, of Allen’s guilt, or

the uniquely aggravating circumstances surrounding Allen’s

crimes.

VI. Conclusion

Evidence of Allen’s guilt is overwhelming. Given the

nature of his crimes, sentencing him to another life term

would achieve none of the traditional purposes underlying

punishment. Allen continues to pose a threat to society,

indeed to those very persons who testified against him in the

Fran’s Market triple-murder trial here at issue, and has proven

that he is beyond rehabilitation. He has shown himself more

than capable of arranging murders from behind bars. If the

death penalty is to serve any purpose at all, it is to prevent the

very sort of murderous conduct for which Allen was con-

victed. Therefore, we affirm the district court’s denial of

Allen’s petition for a writ of habeas corpus.

AFFIRMED.