Richard Clark v. Kevin Chappell

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RICHARD DEAN CLARK, No. 14-99005

Petitioner-Appellant,

D.C. No.

v. 3:97-cv-20618-WHA

KEVIN CHAPPELL, Warden,

Respondent-Appellee. OPINION

Appeal from the United States District Court

for the Northern District of California

William Alsup, District Judge, Presiding

Argued and Submitted April 16, 2019

Pasadena, California

Filed September 5, 2019

Before: Consuelo M. Callahan, Sandra S. Ikuta,

and John B. Owens, Circuit Judges.

Per Curiam Opinion

2 CLARK V. CHAPPELL

SUMMARY *

Habeas Corpus/Death Penalty

The panel affirmed in part and vacated in part the district

court’s denial of Richard Dean Clark’s habeas corpus

petition challenging his California conviction and capital

sentence for the first-degree murder and rape of a 15-year-

old, and remanded to the district court for reconsideration of

one issue in light of Godoy v. Spearman, 861 F.3d 956 (9th

Cir. 2017) (en banc).

Because the habeas petition was filed before April 24,

1996, the panel applied the standards in effect prior to the

implementation of the Antiterrorism and Effective Death

Penalty Act of 1996.

The panel held that Clark’s five certified ineffective-

assistance-of-counsel claims are unavailing because (1)

Clark did not show that trial counsel’s performance fell

below an objective reasonableness standard at the time of

trial or (2) in the few instances in which counsel’s conduct

was deficient, Clark has not shown that there is a reasonable

probability that the outcome would have been different. In

light of Godoy, the panel remanded for further proceedings

on Clark’s certified claim that his rights to due process and

an impartial jury were violated when a juror communicated

with his minister.

*

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

CLARK V. CHAPPELL 3

The panel rejected the state’s argument that three of

Clark’s ten uncertified claims are procedurally barred from

federal review, and granted a certificate of appealability on

six of the uncertified claims. Affirming the district court’s

denial of habeas relief on two claims, the panel concluded

that Clark did not establish any actual conflict of interest that

adversely affected his representation. Affirming the district

court’s denial of Clark’s claim that trial counsel was

ineffective for failing to present life history evidence at the

penalty phase, the panel concluded that trial counsel’s

presentation of life history evidence was not deficient.

Affirming the district court’s denial of Clark’s claim that

trial counsel was ineffective for failing to rebut a jailhouse

report, the panel concluded that counsel’s performance was

not deficient. Affirming the district court’s denial of Clark’s

claim that he was denied his Sixth Amendment right to be

present for critical stages of the proceedings, the panel

concluded that Clark did not explain how his presence at two

meetings regarding possible conflicts of interest with

counsel had a reasonably “substantial relationship” to his

ability to defend himself. Affirming the district court’s

denial of Clark’s claim that habeas relief is warranted under

Brady v. Maryland, 373 U.S. 83 (1963), because the

prosecution failed to disclose two pieces of exculpatory

evidence, the panel concluded that there is not a reasonable

probability that the result of the proceeding would have been

different if the evidence had been disclosed to the defense.

The panel affirmed the district court’s denial of relief on

Clark’s claim that cumulative errors denied him a fair trial.

The panel denied a COA on the remaining uncertified

claims.

The panel affirmed the district court’s denial of

evidentiary hearings for all claims except the juror

misconduct claim as to which the district court will

4 CLARK V. CHAPPELL

determine on remand whether an evidentiary hearing is

warranted.

COUNSEL

John R. Grele (argued), San Francisco, California, for

Petitioner-Appellant.

Alice B. Lustre (argued), Deputy Attorney General; Glenn

R. Pruden, Supervising Deputy Attorney General; Jeffrey M.

Laurence, Senior Assistant Attorney General; Xavier

Becerra, Attorney General; Office of the Attorney General,

San Francisco, California; for Respondent-Appellee.

OPINION

PER CURIAM:

California state prisoner Richard Dean Clark appeals

from the district court’s denial of his 28 U.S.C. § 2254

habeas corpus petition challenging his conviction and capital

sentence for the first-degree murder and rape of fifteen-year-

old Rosie Grover in 1985.

On appeal, Clark raises sixteen claims, of which six were

certified: (1) ineffective assistance of counsel for failing to

advise Clark to accept a plea offer; (2) violation of Clark’s

rights to due process and an impartial jury by juror

misconduct; (3) ineffective assistance of counsel for calling

Dr. Mayland to testify at the pre-trial suppression hearing;

(4) ineffective assistance of counsel in preparing and

presenting expert testimony; (5) ineffective assistance of

counsel for failing to investigate and present evidence of

CLARK V. CHAPPELL 5

Clark’s fetal alcohol exposure, traumatic birth, and the

ensuing effects from both; and (6) ineffective assistance of

counsel for failure to argue that Dean “Dino” Stevens was

an alternative suspect or co-participant and prosecutorial

misconduct in failing to disclose information about Dino.

Clark also raises ten uncertified claims, six of which we

grant a certificate of appealability (“COA”) and deny on the

merits and three of which fail to satisfy the COA standard.

Because Clark’s federal habeas petition was filed before

April 24, 1996, the habeas standards in effect prior to the

implementation of the Antiterrorism and Effective Death

Penalty Act of 1996 (“AEDPA”) apply. Under pre-AEDPA

standards, both questions of law and mixed questions of law

and fact are subject to de novo review, which means that a

federal habeas court owes no deference to a state court’s

resolution of such legal questions (in contrast with post-

AEDPA standards). See Williams v. Taylor, 529 U.S. 362,

400 (2000); see also Robinson v. Schriro, 595 F.3d 1086,

1099 (9th Cir. 2010). But the state court’s factual findings

are entitled to a presumption of correctness unless one of the

exceptions under 28 U.S.C. § 2254(d) (1991) is met.

Clark’s numerous ineffective assistance of counsel

claims, governed by Strickland v. Washington, 466 U.S. 668

(1984), are unavailing because Clark does not show that trial

counsel’s performance fell below an objective

reasonableness standard at the time of the trial in 1987.

Furthermore, for the few instances where counsel’s conduct

was deficient, Clark has not shown that there is a reasonable

probability that the outcome would have been different. His

efforts to show prejudice are undercut by the extensive

evidence presented at trial, including his two detailed

confessions and the physical evidence confirming his

involvement in the crimes. The post-conviction mitigating

6 CLARK V. CHAPPELL

evidence Clark marshals to support his argument that the

penalty phase would have been different is cumulative of the

mitigating evidence presented at the guilt and penalty phases

of trial. We similarly find unpersuasive Clark’s conflict of

interest claim under Mickens v. Taylor, 535 U.S. 162, 171

(2002), based on his first attorney’s election as District

Attorney and his subsequent attorney’s representation of

witnesses.

On one issue, juror misconduct, we remand to the district

court to decide Clark’s claim in light of our recent decision

in Godoy v. Spearman, 861 F.3d 956 (9th Cir. 2017) (en

banc).

We otherwise deny habeas relief. We also affirm the

district court’s denial of evidentiary hearings for all claims

(with the exception of the juror misconduct issue),

concluding Clark has not shown that he would be entitled to

relief on his proffered facts.

I. FACTUAL BACKGROUND

A. The Crimes

Around 4:00 a.m. on July 19, 1985, fifteen-year-old

Rosie Grover arrived at the Greyhound bus depot in Ukiah,

California. After unsuccessfully attempting to obtain a ride,

she started walking to her mother’s house. Several hours

later, her body was found in a nearby creek-bed. Grover had

been raped, stabbed with a sharpened screwdriver, and

bludgeoned in the head and neck with two concrete blocks.

At the time of the crimes, Defendant-Appellant Richard

Dean Clark, then twenty-one years old, was living with and

caring for his paraplegic friend, David Smith, in Ukiah. On

the day before the crimes, Clark and Smith spent the

CLARK V. CHAPPELL 7

afternoon drinking beer, ingesting cocaine, and smoking

marijuana. Clark drank three or four beers at the local bar.

Clark and Smith both ingested cocaine at the house of

Smith’s stepsister, Michelle Stevens. Although Smith had

seen Clark use methamphetamine in the past, he did not see

Clark use methamphetamine that day. Clark smoked

between two and five marijuana cigarettes.

Later that evening, a fight broke out between Clark and

Michelle’s boyfriend, Matt Williams. According to

Williams, Clark “looked like he was on something” and “got

kind of violent, shadow boxing around the house and

throwing punches.” Around 10:00 p.m., Clark announced

that he “was going to beat somebody up and rob them” and

then he left with Dino Stevens—Michelle’s stepbrother.

Clark and Dino played pool at Munchie’s, a local pool

hall, for approximately 30 to 40 minutes. After they left the

pool hall, they went to the home of Robyn Boyd, who lived

near the Ukiah bus depot. Clark and Dino left Boyd’s house

around 12:30 a.m. Upon leaving, the men went their

separate ways.

Little evidence, other than Clark’s statements to the

police, establish Clark’s location and movements from the

time that he left Boyd’s house until he entered a restaurant

later that morning.

On July 19 at about 6:15 a.m., Clark walked into Ron-

Dee-Voo Restaurant near the Greyhound bus depot with a

partially empty wine cooler bottle in his hand. He told Karen

Mertle, a waitress, that he found a girl’s body in a nearby

ditch who was hurt “real bad” and “maybe raped.” He

handed Mertle the wine cooler bottle, which she saved to

give to the police. Mertle testified that Clark did not appear

8 CLARK V. CHAPPELL

intoxicated. Several witnesses from the restaurant testified

that Clark did not appear intoxicated or upset.

Officer Wayne McBride of the Ukiah Police Department

arrived at the restaurant at around 6:34 a.m. Clark told

Officer McBride that he found the body when he was taking

a “shortcut” to buy cigarettes at a convenience store and that

he checked the body for a pulse and may have touched the

suitcase found near the body. Officer McBride testified that

Clark was wearing sunglasses and spoke rapidly but did not

appear to be intoxicated and did not smell of alcohol.

Detectives Fred Kelley and Edward Gall collected

physical evidence at the crime scene. Grover’s body was

partially clothed with her jeans buttoned, a cloth belt undone,

her jacket and blouse open exposing her bra, and her shoes

and tank-top lying on the ground nearby. Her duffle bag and

suitcase were about ten feet away from her body, and inside

her duffle bag was the same brand and flavor of wine coolers

as the bottle Clark had given to Mertle. Two bloody concrete

blocks—the heavier of the two weighing about

18.5 pounds—were found near Grover’s body with traces of

human blood and hair, consistent with Grover’s.

After searching the crime scene, Detectives Kelley and

Gall went to Michelle’s house, where Clark and Smith were

residing at the time, and received Smith’s permission to

search Smith’s car. Detective Kelley found a pair of Levi’s

jeans and a vest-jacket on the rear seat with blood splattered

on the jeans and smeared on the vest. Smith and Michelle

identified the clothing as having been worn by Clark the

previous evening. The blood was found to be consistent with

both Grover’s and Clark’s blood.

One week later, a hand-sharpened screwdriver with

traces of human blood was found in Smith’s car. On the

CLARK V. CHAPPELL 9

shoes Clark wore when he was arrested, there was splattered

human blood and a hair that was found to be consistent with

Grover’s hair and inconsistent with Clark’s hair. Clark

“could not be ruled out” as the source of the semen found in

the victim’s underwear, and the pubic hair found in the

victim’s underwear was consistent with Clark’s.

B. Clark’s Confessions

Clark gave three custodial statements to the police on the

day of his arrest. First, at the police station and prior to his

arrest, Clark waived his Miranda rights and spoke to

Detectives Kelley and Gall, essentially repeating the same

story he told Officer McBride earlier in the morning at the

restaurant.

Second, after Clark’s arrest and booking, Detectives

Kelley and Gall transported Clark to the hospital to obtain a

sample of Clark’s blood. During the drive, Clark confessed

to killing Grover. During the drive, Clark suddenly asked,

“What can someone get for something like this, thirty

years?” Detective Gall testified at trial that he had

responded: “Probably not unless you were a mass murderer.”

Fifteen to twenty-five seconds following this exchange

Clark said, “I want this on the record. I’m guilty. I killed

her. What do you want to know?” Clark told the officers

that he was walking southbound on State Street when he met

Grover. Clark told the officers that Grover “started to come

on to him.” The officer recalled that Clark said that Grover

“flashed” her breast at him. Clark said that he and Grover

had consensual sexual intercourse, but that afterward Grover

threatened “that she was going to cry rape.” Clark said that

he thought that he would probably receive a less severe

penalty for killing her than raping her and so then began to

choke her. Clark said he found “what appeared to be a

screwdriver, just the metal shaft part, . . . in the creekbed and

10 CLARK V. CHAPPELL

he said he stabbed [Grover] several times,” and “took a large

piece of cement and hit [Grover] in the head with it.” Clark

told the officers that he then went back to Michelle’s house

and changed his clothing. Clark left a pair of Levi’s jeans

and his jacket in the back of Smith’s car. Clark told the

officers that he then returned to the crime scene because he

thought that if he reported finding the body, no one would

suspect that he killed Grover. In this confession, Clark did

not mention blacking out during the crimes.

Third, upon returning to the police station, Clark waived

his constitutional rights and agreed to provide a tape-

recorded statement to Detectives Kelley and Gall and

Deputy District Attorney Al Kubanis. The recorded

statement differed somewhat from the statement Clark gave

in the patrol car. In the recorded statement, Clark explained

that during the prior evening he had ingested eight or nine

beers, several tablets of Valium, one-eighth gram of

methamphetamine, and several marijuana cigarettes, and

that he had “blacked out” during the course of the crimes.

During this confession, Clark repeated that he was walking

southbound on State Street when he met Grover. Clark said

that “the next thing [he] kn[e]w [Grover had] her top off.”

Clark again admitted to having sexual intercourse with

Grover and claimed it was consensual. Clark said that,

following the encounter, Grover “said she was going to cry

rape” and “to put [him] in jail for 20, 30 years.” Clark stated

that then he “grabbed her by the neck” and “started choking

her.” In the recorded statement, unlike in the patrol car

confession, Clark claimed he blacked out, and the next thing

he remembered was that he was “bashing [a] rock” into

Grover. Clark told the police that he believed he hit Grover

in the head with the rock. Clark said that he “remember[ed]

throwing a piece of metal” that “looked like an old broken

screwdriver or something” but that he did not remember

CLARK V. CHAPPELL 11

stabbing Grover. When questioned about his earlier

statement in the patrol car in which he said he had stabbed

Grover, Clark said that was simply his assumption based on

the officers telling him that she had stab wounds. The taped

statement lasted about 35 minutes.

II. JUDICIAL PROCEEDINGS

A. Pre-Trial Issues

Clark was arraigned on July 23, 1985, in Ukiah. Clark

entered a not guilty plea. Although the crimes occurred in

Mendocino County, the state court granted Clark’s motion

to change venue to Santa Clara County for the trial.

1. Representation

At the arraignment, the Mendocino County Public

Defender Susan Massini was appointed to represent Clark.

In September 1985, Joseph Allen, an experienced capital

defense attorney, became co-counsel at Massini’s request

due to her inexperience with capital cases. Massini and

Allen jointly represented Clark through June 1986.

In January 1986, Massini decided to run for Mendocino

County District Attorney. On February 7, 1986, there was a

pre-trial conference regarding the trial date. The deputy

district attorney wanted the trial date set before June 1986

because he was worried that Massini might be elected

District Attorney and present conflict of interest problems.

Massini and Allen objected, doubting that such problems

would arise. However, Massini was elected as the District

Attorney in June 1986 and took office in January 1987.

After the election, Allen moved to recuse the District

Attorney’s Office from prosecuting Clark’s case. The court

granted the motion, and the Attorney General was

12 CLARK V. CHAPPELL

substituted as prosecutor. When Massini relinquished the

position of Mendocino County Public Defender, Ronald

Brown was promoted to that position and became co-counsel

with Allen. Brown or his office had previously represented

prosecution witnesses Robyn Boyd, David Smith, Dino

Stevens, and Matt Williams in unrelated matters.

2. Psychiatric Evaluation

In late July 1985, Massini retained Dr. Peter Mayland, a

practicing psychiatrist with a specialty in forensic

psychiatry, as a mental health consultant to evaluate both

Clark’s competency to stand trial and the possibility of a

mental-health-related defense or mitigation at trial.

Dr. Mayland first met with Clark at the Mendocino County

Jail several days after Clark was arrested. Dr. Mayland

recommended that Massini consult with his former

colleague Dr. Rex Beaber to assess whether Clark had an

impairment that might provide the basis of a viable mental

defense.

Clark met with Dr. Beaber on November 23 and 24,

1985. Dr. Beaber concluded that he probably could not be

of assistance to the defense from a guilt standpoint. Massini

requested that Dr. Beaber write a letter to summarize his

findings. According to Dr. Mayland’s declaration,

Dr. Beaber thought it might be best if he did not write a

report of any sort, but Massini insisted that he generate a

report that detailed his findings. In response to Massini’s

request, Dr. Beaber drafted a one-page letter detailing his

findings. The letter indicates that “Clark does not appear to

suffer from any organic brain dysfunction, psychosis,

schizophrenia, or affective disorder.” According to

Dr. Beaber, Clark did not evince any disorder that would

impair his capacity to form the requisite intent for the crimes

charged. Instead, Dr. Beaber’s letter indicates that Clark’s

CLARK V. CHAPPELL 13

“‘amnesia’ appears to be typical psychogenic post-homicide

amnesia [that] is not, in itself, demonstrative of any

particular disability regarding the usual mens rea issues.”

Dr. Beaber’s letter concludes that Clark suffers from “a

sociopathic personality disorder” and exhibits characteristics

of a “sexual psychopath,” which resulted from “severe

maternal deprivations throughout his childhood.” Allen,

who became co-counsel after Massini received Dr. Beaber’s

letter, was unaware of the nature of Dr. Beaber’s letter.

3. Plea Offer

At some point before the pre-trial suppression hearing,

the state offered Clark a deal to plead guilty to first-degree

murder with a sentence of life without parole. Dr. Mayland

and Brown thought taking the plea deal was the best option,

but Allen disagreed. Allen thought there was a good chance

he could get a life sentence or even a second-degree verdict.

Allen also thought that he could potentially get Clark’s

statements to the police suppressed at the suppression

hearing, but the state declined to leave the deal open through

the litigation of the suppression issues. Allen informed

Clark “that the only choice he had was life without parole or

a trial.” Clark ultimately “decided to go to trial.”

4. The Pre-Trial Suppression Hearing

On October 20, 1986, the court conducted a lengthy

hearing on Clark’s motion to suppress his confessions. The

hearing included both documentary and testimonial

evidence.

Dr. Mayland testified for the defense. By that time,

Dr. Mayland had met with Clark regularly and developed a

therapeutic relationship with him. Although Dr. Mayland

regularly discussed the case with Allen, Allen did not know

14 CLARK V. CHAPPELL

that Dr. Mayland had talked to Clark about the facts of the

crimes beyond Dr. Mayland’s initial interview with Clark.

Dr. Mayland testified that, based upon psychological

factors arising from Clark’s childhood, lifestyle, and drug

use, he possessed “serious doubt” regarding whether Clark

could have understood and intelligently waived his Miranda

rights on July 19, 1985. During cross-examination, the

prosecution asked Dr. Mayland what Clark told him about

the crimes. Dr. Mayland testified that Clark told him details

about the crimes on two separate occasions—first, in the

initial interview at the Mendocino County Jail several days

after Clark’s arrest, and second, in a meeting about a month

after that initial interview. Dr. Mayland reviewed his notes

and read them at the suppression hearing.

In Clark’s first account to Dr. Mayland, Clark told

Dr. Mayland that he met Grover, that Grover performed oral

sex on Clark, and that Grover and Clark had consensual

sexual intercourse. According to Dr. Mayland’s notes, Clark

told Dr. Mayland that Grover said, “If I don’t get pregnant,

I won’t cry rape.” Clark then stated, “If you cry rape, this is

what’s going to happen to you,” and he then “put [his] hands

on her neck.” Then, Clark stated he “blacked out.” Clark

woke up to Grover “all bloody” and got “scared.” He then

“ran back to the car, [and] changed his pants and jacket” at

Michelle’s house.

In Clark’s second account to Dr. Mayland, Clark stated

that he grabbed Grover and pulled her behind a building and

demanded of Grover, “Why don’t you show me some tit,

bitch” and “suck my dick” (referred to herein as the “lewd

statements”). Grover asked him what he wanted, and Clark

pointed to his genital area. Grover said that she would give

Clark one hundred dollars to come to her home. Clark said

no because Grover would just turn him in. Clark told Grover

CLARK V. CHAPPELL 15

to take off her clothes. Clark said that Grover was scared

and that Clark acted “mean.” Grover said to Clark, “Please

don’t hurt me. I’ll do anything you want.” Clark then had

sexual intercourse with Grover. Afterwards, Clark asked if

Grover was “going to cry rape.” Clark said, “If you say

anything, . . . this is what’s going to happen to you if you cry

rape.” Then, Clark began to choke Grover. According to

Dr. Mayland’s notes, Clark stated: “I was scared she was

going to suffer, so I— . . . I didn’t mean to. I lost control.

She was still jittering. I stabbed her. I was trying to get it

over. I figured I already killed her and didn’t want her to

suffer. She totally stopped moving. I ran. Went back to the

car and changed clothes.”

The state court ruled that the prosecutor could use at trial

Clark’s statements to Dr. Mayland to impeach Clark’s

experts, that “tendering of the psychiatric defense” waived

any Fifth and Sixth Amendment privileges, and that Clark

waived the statutory attorney-client and psychotherapist-

patient privileges.

Allen and Brown both thought that the trial judge had

assured them that Dr. Mayland’s testimony at the pre-trial

suppression hearing would not be admissible at trial for any

purpose. According to counsel, this agreement occurred in

an unreported in-chambers conference during the

suppression hearing. Clark was not present during this

conference. Defense Investigator Howard McPherson also

understood that the trial judge had assured Allen that

Dr. Mayland’s testimony would not be admissible at trial for

any purpose. The trial judge later stated that he did not recall

any such discussion in chambers.

16 CLARK V. CHAPPELL

B. The Trial

Voir dire on the case started on October 20, 1986, and

the presentation of evidence began on March 9, 1987.

1. The Guilt Phase

a. The Prosecution’s Case at the Guilt Phase

At trial, the prosecution called experts to testify to the

gruesome nature of the crimes. The prosecution also

introduced evidence regarding Clark’s confessions by

calling the detectives to testify regarding Clark’s confession

in the patrol car and playing the recording of Clark’s taped

confession at the police station.

The autopsy confirmed that Grover was raped, stabbed,

and beaten. The autopsy was performed under the direction

of Dr. Boyd Stephens, who testified at trial. Dr. Stephens

opined that the lacerations to Grover’s vaginal area were

consistent with nonconsensual sexual intercourse, and sperm

was found inside and outside her vagina. Dr. Stephens could

not make a conclusive finding on whether sodomy had

occurred. No trauma to the anal opening was observed, but

a “rare” sperm was found in the anus.

Dr. Stephens testified that, although two of the ten stab

wounds penetrated Grover’s heart and lungs and could have

independently killed her, the actual cause of death was blunt

trauma to the head and neck. Dr. Stephens could not

determine how many blows had been struck, but nineteen

separate areas of blunt trauma were visible. Grover’s face

was bludgeoned so extensively that her facial structure was

collapsed and her brain tissue exuded through her skull

fractures. There was no conclusive evidence of attempted

strangulation, in large part because the blunt trauma injuries

CLARK V. CHAPPELL 17

were so extensive that they obscured any signs of

strangulation that would have normally been present.

A criminalist testified about tests performed on the

physical evidence. Analysis of the blood splatters on Clark’s

jeans revealed enzymes consistent with both Clark’s and

Grover’s blood. A hair found on one of Clark’s shoes was

consistent with Grover’s hair. Clark could not be ruled out

as the source of semen. The concrete blocks had traces of

blood and hair consistent with Grover’s. The sharpened

screwdriver found in Smith’s car approximately a week after

the murder bore traces of human blood.

The prosecution’s strategy to fight Clark’s theory of

“rage reaction” was, during cross-examination of the defense

witnesses, to rely on Dr. Mayland’s second account of

meeting with Clark, including the two lewd statements. The

prosecution used the testimony to compel the defense

experts to admit that Clark’s actions were goal-oriented, and

thus is inconsistent with a rage reaction.

b. The Defense’s Case at the Guilt Phase

Clark did not dispute at trial that he killed Grover, but

instead, the defense strategy at trial was to argue Clark

lacked the intent to kill her. The defense asserted that Clark

had emotional difficulties and chronic drug use that resulted

in a “rage reaction” during the crimes. Defense counsel

argued that “a person who goes into a rage [reaction] is not

acting with intent.”

The defense’s case centered around disputing that Clark

was able to form the requisite state of mind to kill based on

his emotional difficulties, severe depression, and chronic

drug use that culminated in a “rage reaction” on the night of

the murder. The defense called several witnesses to testify

18 CLARK V. CHAPPELL

that Clark used drugs from an early age and regularly

ingested alcohol, marijuana, and methamphetamine.

Witnesses also testified that Clark was severely depressed,

attempted suicide in February 1985, and increased his drug

usage following the suicide attempt.

Clark also called numerous expert witnesses during the

guilt phase to support the rage reaction theory. These

included Dr. Randall Baselt, a forensic toxicologist, who

testified regarding his analysis of the blood sample taken

from Clark shortly after arrest. Dr. Baselt testified to traces

of marijuana and Valium in Clark’s blood.

Dr. Ronald Roberts, a clinical psychologist for the

defense, conducted testing on Clark to determine his then-

current psychological functioning and whether he suffered

from any neuropsychological deficits. Dr. Roberts testified

about his test results. The prosecution cross-examined

Dr. Roberts by using the two lewd statements in Clark’s

second account to Dr. Mayland. Dr. Roberts testified that

Clark had not mentioned making those statements to Grover,

but had told Dr. Roberts that Grover tried to talk Clark out

of forcing her to have sex.

Dr. David Smith, the medical director of the Haight

Ashbury Free Medical Clinic, testified extensively about the

effects of methamphetamine abuse and the phenomenon of

a “rage reaction.” He also testified that the extent of

debilitative drug effect cannot be determined by the level of

methamphetamine in the blood, because the effect of

dosages taken over time is cumulative. On direct

examination, Dr. Smith testified that “[a] rational, goal-

oriented reaction to the sensory stimulus” was less likely to

reflect impairment or a so-called rage reaction.

CLARK V. CHAPPELL 19

On cross-examination, the prosecution attempted to

show that Clark was engaging in goal-oriented behavior and

thus not having a rage reaction. The prosecution relied on

testimony in the record and Dr. Mayland’s second account

to create a hypothetical “goal.” The prosecution asked Smith

to consider this hypothetical: “Assume that at about

11:00 p.m. at night a man says to certain acquaintances of

his I’m going to go out and steal something and I’m going to

screw somebody up or beat somebody up.” Dr. Smith agreed

that this was a “rational goal-oriented statement.” The

prosecution then asked if a series of hypothetical actions,

such as stealing a battery, obtaining a sharpened screwdriver,

and grabbing a woman and pulling her behind a building,

were consistent with this hypothetical 11:00 p.m. goal-

oriented statement. Dr. Smith agreed they were.

The prosecution then asked about the two lewd

statements that Dr. Mayland testified about: Clark’s

statements to Dr. Mayland that he demanded of Grover

“Why don’t you show me some tit, bitch” and “suck my

dick.” The prosecution asked if these statements were

consistent with the goal reflected in the hypothetical. Based

on the defense’s objection and after the judge’s sidebar with

counsel outside the presence of the jury, the judge ultimately

concluded that both lewd statements could be used as

hypotheticals in the cross-examination of Dr. Smith. The

judge admonished the jury that it could not consider the

statements for their truth, but “only as it may assist you in

understanding the opinion of this expert now on the stand.”

Dr. Smith agreed that both lewd statements were consistent

with the goal reflected in the hypothetical. The prosecution

also asked if, assuming hypothetically, some of the other

details of Clark’s statements, including removing Grover’s

clothing, reacting to her threat of reporting him for rape, and

20 CLARK V. CHAPPELL

killing Grover, were consistent with goal-oriented behavior.

Dr. Smith agreed that they were.

Dr. Stephen Raffle, a psychiatrist for the defense,

testified regarding Clark’s mental condition at the time of the

murder. Dr. Raffle testified that Clark had suffered a rage

reaction, and Dr. Raffle diagnosed Clark with a borderline

personality disorder. The prosecution asked Dr. Raffle

whether Clark admitted to Dr. Raffle that the sexual

intercourse was forced, and Dr. Raffle said yes. During the

cross-examination of Dr. Raffle, Dr. Raffle agreed that Clark

had been lying at some points in his rendition of the story.

Dr. Raffle also agreed during cross-examination that Clark

could be psychopathic and brilliant, rather than having a rage

reaction, based on his lying.

Later in Dr. Raffle’s testimony, the prosecution asked

Dr. Raffle to assume the truth of all of the details of

Dr. Mayland’s testimony regarding Clark’s second account.

After the prosecution went through Dr. Mayland’s

testimony, the prosecution asked Dr. Raffle whether he

believed Clark’s statements about his remorse were genuine.

Dr. Raffle testified that he believed they reflected true

remorse at the time.

The prosecution also asked Dr. Raffle about Dr. Beaber’s

letter. Dr. Raffle responded: “It does not give me any of his

clinical data, nor do I have available to me any of his clinical

data for analysis.”

c. The Verdict

On June 22, 1987, the jury convicted Clark of first-

degree murder and rape under California Penal Code § 187

and § 261(2). The jury also found true the special

circumstance allegations: (a) that Clark committed the

CLARK V. CHAPPELL 21

murder during the course of the rape under

§ 190.2(a)(17)(iii); (b) that he inflicted bodily injury with the

intent to do so under § 1203.075(a)(1); and (c) that he used

a deadly weapon (a screwdriver) in the commission of the

murder under § 12022(b).

2. The Penalty Phase

a. The Prosecution’s Case at the Penalty Phase

Relying on the circumstances of the murder, the

prosecution presented no aggravating evidence during the

penalty phase.

b. The Defense’s Case at the Penalty Phase

The defense presented the testimony of 23 witnesses in

mitigation, including Clark’s family members, friends,

scoutmasters, a teacher, and a mental health counselor. The

mitigating evidence focused on Clark’s deteriorated family

situation, Clark’s father’s death, and Clark’s drug use and

mental health problems. The California Supreme Court’s

decision on direct appeal provides a recitation of Clark’s life

history presented by the defense at the penalty phase:

Defendant was the eldest child of Diane

and Paul Dean Clark and the brother of

Robert and Annette. Although some

testimony indicated that defendant’s father

drank and was abusive, defendant’s family

life was relatively stable until his parents’

separation and his father’s subsequent death.

While his parents were together, defendant

was active in the Boy Scouts and his parents

served as scoutmasters. Several witnesses

remembered defendant as an “excellent” or

22 CLARK V. CHAPPELL

“good” scout, who interacted well with his

peers.

Numerous witnesses recounted how

defendant’s family situation deteriorated

dramatically after his parents’ separation,

which occurred when defendant was about

10 years old. Defendant’s mother worked

menial jobs, often at night. The children were

generally left unsupervised. Defendant’s

mother developed a drinking problem. After

her shift, she would not go home to the

children, but instead would stop to have a few

drinks at the local tavern. Defendant’s

mother failed to provide a sanitary home or

nutritious food for the children. Extensive

testimony described the filthy conditions of

the home. Defendant tried to care for his

younger sister in his mother’s absence and to

subdue the aggressive behavior of his

brother.

After his father’s death, which was

followed closely by the deaths of both his

paternal and maternal grandfathers, witnesses

noticed a change in defendant’s behavior.

Defendant became chronically depressed and

stayed withdrawn in his room for extended

periods of time.

About this time, defendant and his

brother began to drink and use drugs. Their

house became the neighborhood “party

house” and was akin to a “riot area.” There

was conflicting testimony regarding whether

defendant would ingest intoxicants when he

CLARK V. CHAPPELL 23

was caring for his sister. Several of the

friends who frequented the defendant’s house

testified that he was not “the violent type”

and frequently broke up physical fights.

During this period of time, defendant and

his siblings would occasionally visit a ranch

owned by his maternal grandmother. His

grandmother and other relatives remembered

defendant as a hard worker who volunteered

to do tasks at the ranch.

Defendant and his family received

counseling from the fall of 1980 through

March of 1983. The counseling was

precipitated by a fight between defendant and

his brother. The counselor found defendant

to be depressed and frustrated in school due

to a reading problem. Defendant was

cooperative during counseling and seemed to

care for his family.

Eventually defendant was removed from

his mother’s custody and placed in a foster

home. He apparently thrived in the

structured environment. Defendant had a

“beautiful” relationship with the other

children in the home. However, he

occasionally drank beer and smoked

marijuana with his foster mother’s son.

While living at the foster home, defendant

was enrolled in a special education program,

which began to address his significant

reading deficiency as well as his emotional

problems. Defendant was a responsible

student and did well in his classes. He was

24 CLARK V. CHAPPELL

popular and would defend other children. He

continued to have a problem with drug usage

during the school day, which his teacher

attributed to a need to escape the pain and

anger he felt about his mother and brother.

When defendant graduated from high

school, he was forced to leave his foster

home. He worked at the Aloha Saw and

Mower Shop. The owner remembered him as

a reliable worker with a good attitude. He

lived for a time with Keith Michalek. Both

Keith and his father recalled defendant as a

good, trustworthy person, who was never

“rowdy.” While he was living with Keith, he

drank beer and smoked marijuana

occasionally, but did not use “hard” drugs.

Defendant’s mother convinced defendant

to quit his job and come live with her in

Anderson. His mother later moved to Oregon

without him. Prior to his mother’s move,

defendant tried to commit suicide, apparently

as the result of a failed romantic relationship.

While he was living in Anderson,

defendant began to care for Smith. Robert

Clark testified that Smith was a heroin addict.

About three months before the murder,

defendant injected methamphetamine for the

first time.

Numerous witnesses testified that they

could not believe that defendant had

committed the crimes for which he was

convicted.

CLARK V. CHAPPELL 25

Finally, the jury heard that while he was

awaiting his trial, defendant continued his

attempt to overcome his reading deficiency

by working with a counselor from the

Mendocino County Adult Literacy Program.

People v. Clark, 857 P.2d 1099, 1145–46 (Cal. 1993).

c. The Penalty

On August 14, 1987, the jury imposed the death penalty

upon Clark. On direct appeal, the California Supreme Court

issued a reasoned decision on August 30, 1993, affirming

Clark’s conviction and sentence. Clark, 857 P.2d at 1110.

In its decision, the court rejected Clark’s claims of conflict

of interest (uncertified Claims 5 and 6). Id. at 1130–32. On

June 30, 1994, the United States Supreme Court denied his

petition for writ of certiorari. Clark v. California, 512 U.S.

1253 (1994).

C. Post-Conviction

1. Post-Conviction Issues

a. Manda Report

On July 19, 1985 (the day of the murder), Deputy Glenn

Manda of the Mendocino County Sheriff’s office prepared a

coroner’s report (the “Manda Report”). Post-conviction,

Clark contends that this is exculpatory evidence that was

withheld by the prosecution during trial.

According to the report, which states it was filled out at

11:00 a.m., Deputy Manda conducted an autopsy at the

mortuary, which revealed puncture wounds on Grover’s

upper back near the spine. The report also states that Deputy

26 CLARK V. CHAPPELL

Manda notified the Ukiah Police Department, and Detective

Gall arrived at the mortuary to take photos of the body.

b. Jailhouse Report

On October 17, 1985, one of the guards at Mendocino

County Jail wrote an “Inmate Safety Report,” expressing

concern for Clark’s safety. The report states that “[i]nmates

in [the] exercise yard hinted that Richard Clark may be

assaulted tonight.” The report further relayed that inmates

Barella, Hull, Brackett, and Strobridge “stated that Clark

might not make it through the night” and “he should be

moved or else he would be assaulted due to Clark’s cocky

attitude and lack of remorse.” The report commented that

“[t]he inmates would not be specific, but felt we should be

warned.” The reporting guard advised his supervisor of the

situation, and “Clark [was] moved to Isolation for his own

protection.”

The jailhouse report was admitted into evidence during

trial. The state asked Dr. Raffle questions about the report

during cross-examination in an effort to impeach

Dr. Raffle’s opinion that Clark was remorseful about his

crimes. The only objection to this line of questioning was

that the defendant had not received a copy of the report.

During post-conviction proceedings, the defense

obtained declarations of two of the inmates named in the

report. In his 1998 declaration, Inmate Robert Brackett

stated: he was then in custody with Clark; he was at that time

represented by Public Defender Brown; Clark “never said or

did anything that indicated lack of remorse”; and Clark “did

not act cocky or proud in any way.” In his 1998 declaration,

Inmate John Strobridge stated: Clark never said or did

anything or acted in any way that showed a lack of remorse;

Strobridge never thought that Clark was cocky; Clark never

CLARK V. CHAPPELL 27

bragged about the crimes; and Clark once said: “I was so out

of my mind on drugs. I wish it never happened.”

c. Juror Communication with a Minister

In 1996, about nine years after Clark’s conviction, one

of the jurors, Frederick Barnes, declared that during the trial

he had consulted with a minister about the death penalty.

Specifically, Juror Barnes declared:

During the guilt phase of the trial, it became

clear that the special circumstances would be

found to be true and that there would be a

penalty phase. I consulted with a minister

about the propriety of imposing the death

penalty. I explained to him my role in the

trial and the facts of the case. He told me that

in these circumstances the death sentence

would be appropriate because the Bible says,

“an eye for an eye.” The minister’s advice

was useful. I had long believed that anyone

who is guilty of murder and convicted with a

special circumstance should be given the

death penalty.

At oral argument in this appeal on April 16, 2019, the

state’s attorney presented for the first time on appeal a

declaration by Investigator Randall Wong, dated September

3, 1997. The state’s attorney conceded at oral argument that

the declaration was not in the excerpts of record.

Subsequently, the state added the declaration as a

28 CLARK V. CHAPPELL

supplement to the excerpts of record. 1 Investigator Wong

stated in his declaration:

On August 4, 1997, Mr. Kaster and I

interviewed Mr. Barnes at his residence in

San Jose, California. Mr. Barnes was asked

about that part of his declaration which states

that he consulted with a minister during the

guilt phase. The declaration states that Mr.

Barnes explained to the minister his “role in

the trial and the facts of the case.”

Mr. Barnes told Mr. Kaster and myself

that he had asked the minister how the

minister felt about the death penalty issue.

The minister replied that the Bible says “an

eye for an eye” and said he did not question

the death penalty. Mr. Barnes also said that

the minister’s statement did not settle the

issue; the evidence in the case was the main

thing that made Mr. Barnes decide on the

death penalty.

1

In 1997, the state hired Investigator Randall Wong to interview

Juror Barnes to obtain more information regarding the alleged

conversation between Barnes and his minister. Investigator Wong

prepared a declaration describing the results of the interview. According

to the district court, the state put this declaration into evidence during

Clark’s state habeas proceeding. Three years later, the state sought to

introduce the declaration in the federal proceedings (over Clark’s

objections) in support of its motion for summary judgment. The district

court did not rule on Clark’s objections, but instead expressly declined

to consider Wong’s declaration when it ruled on the summary judgment

motion. The district court did not mention the Wong declaration in its

April 2014 order.

CLARK V. CHAPPELL 29

Mr. Barnes told us that he had not

discussed the evidence from the trial with his

minister. When the declaration was

presented to him by Clark’s agents he had

missed that part which refers to “the facts of

the case.” Also, Mr. Barnes said that the talk

with the minister came not during the guilt

phase but around the time the penalty phase

was starting or about to start.

2. Post-Conviction Proceedings

a. State Habeas Corpus Petitions

Meanwhile, on February 18, 1993, Clark filed a state

petition for writ of habeas corpus, which the California

Supreme Court summarily denied on the merits on

November 17, 1993. On May 1, 1997, Clark filed a second

state habeas petition, which the California Supreme Court

denied on August 13, 1998, finding several claims

procedurally barred under California rules and also rejecting

all the claims on the merits. In his first state petition, Clark

raised the issues that have been designated in this federal

proceeding as certified Issues 4, 5, and 6 and uncertified

Claims 8, 11, and 36, and in his second state petition, Clark

raised certified Issues 1, 2, and 3 and uncertified Claims 14F,

14L, 15B, 18, and 20.

b. Federal Habeas Corpus Petitions

On April 19, 1995, Clark filed a federal petition for writ

of habeas corpus in the Northern District of California under

28 U.S.C. § 2254. After he filed an amended federal petition

in July 1996, unexhausted claims were identified and Clark

was granted leave to return to state court to file an amended

30 CLARK V. CHAPPELL

state petition, and the federal proceedings were stayed

pending exhaustion of state court remedies.

When Clark returned to federal court, he filed another

amended federal habeas petition in 1998. The state filed a

combined answer to the amended petition and motion for

summary judgment on all claims. Clark opposed the motion

for summary judgment and filed a cross-motion for summary

judgment. A hearing was conducted on the issues. On May

8, 2000, the district court (Judge Ware) granted summary

judgment in favor of the state on the vast majority of the

claims. Judge Ware also found an evidentiary hearing to be

necessary on Claim 19 (a shackling question, which is not

raised on appeal). On June 5, 2000, the district court filed

an order permitting Clark to file a request for an evidentiary

hearing for claims that included the claims for which the

district court had already granted summary judgment.

Immediately after the court’s order, Clark filed a 400-

page motion for evidentiary hearing. After further

extensions of time and briefings and after Clark filed another

amended federal habeas petition in July 2005, the district

court denied Clark’s motion for an evidentiary hearing

without prejudice. From May 2006 through 2009, the

proceedings were delayed further and the parties filed

several status reports updating the court. 2

On September 22, 2009, Clark filed his operative fifth

amended federal habeas petition, alleging thirty-four claims

for relief, including the six certified and ten uncertified

2

From May 2006 until May 2007, the proceedings were stayed to

allow Clark time to investigate the accuracy of declarations before the

court, which may have been falsified by investigator Kathleen Culhane,

who had been charged with falsifying declarations and witness

statements. Several declarations were later withdrawn.

CLARK V. CHAPPELL 31

claims on appeal here. The state answered in May 2010, and

the deadline for completing discovery was extended several

times by request of both parties.

On August 1, 2012, Clark filed a renewed motion for an

evidentiary hearing. On September 5, 2012, the case was

reassigned from Judge Ware to Judge Alsup. On April 1,

2014, the district court denied Clark’s motion for renewed

evidentiary hearing, his writ of habeas corpus as to all of his

claims for relief, and his request for a COA. Final judgment

issued, and this appeal followed.

c. The Current Appeal

On September 4, 2015, we granted in part Clark’s motion

for COA on six claims. Clark raised the ten uncertified

claims in his opening brief. The parties filed supplemental

briefs first in response to our order to address uncertified

Claims 5, 6, 11, 14L, 18, and 20 with particularized focuses

directed by the court. Subsequently, the parties filed

supplemental briefs in response to our order to address the

impact, if any, of Godoy v. Spearman, 861 F.3d 956 (9th Cir.

2017) (en banc), and of Williams v. Filson, 908 F.3d 546 (9th

Cir. 2018). We have jurisdiction under 28 U.S.C. § 1294

and § 2253.

III. STANDARD OF REVIEW

AEDPA, which implemented changes to statutes

governing federal habeas corpus petitions for state and

federal prisoners, applies only to those cases that were filed

after its effective date of April 24, 1996. Slack v. McDaniel,

529 U.S. 473, 481–82 (2000); Lindh v. Murphy, 521 U.S.

320, 326–27 (1997). Where a petitioner files an amended

petition, the filing date of the original petition is the

controlling date for purposes of determining whether

32 CLARK V. CHAPPELL

AEDPA applies. Thomas v. Chappell, 678 F.3d 1086, 1100–

01 (9th Cir. 2012); Smith v. Mahoney, 611 F.3d 978, 994–95

(9th Cir. 2010). Here, Clark filed his original petition in

1995, before AEDPA’s effective date. Pre-AEDPA

standards thus govern his habeas petition.

Under pre-AEDPA standards, both questions of law and

mixed questions of law and fact are subject to de novo

review, which means that a federal habeas court owes no

deference to a state court’s resolution of such questions.

Williams, 529 U.S. at 400; Garcia v. Bunnell, 33 F.3d 1193,

1195 (9th Cir. 1994) (reviewing conflict of interest claim in

habeas petition as a mixed question of fact and law subject

to de novo review). For factual findings under pre-AEDPA

standards, the state court is entitled to a presumption of

correctness unless one of the exceptions to 28 U.S.C.

§ 2254(d) (1991) is met, including, as relevant here:

(1) that the merits of the factual dispute were

not resolved in the State court hearing;

(2) that the factfinding procedure employed

by the State court was not adequate to afford

a full and fair hearing; (3) that the material

facts were not adequately developed at the

State court hearing; . . . (6) that the applicant

did not receive a full, fair, and adequate

hearing in the State court proceeding; or

(7) that the applicant was otherwise denied

due process of law in the State court

proceeding; (8) or unless that part of the

record of the State court proceeding . . . is

produced . . . and the Federal court on a

consideration of such part of the record as a

whole concludes that such factual

CLARK V. CHAPPELL 33

determination is not fairly supported by the

record . . . .

Sumner v. Mata, 455 U.S. 591, 592 & n.1 (1982) (per

curiam) (quoting 28 U.S.C. § 2254(d) (1991)). The

petitioner carries the burden to establish by convincing

evidence that the state court’s factual determination was

erroneous. Id.

Dismissals based on state procedural default are

reviewed de novo. See Robinson, 595 F.3d at 1099; Griffin

v. Johnson, 350 F.3d 956, 960 (9th Cir. 2003). When “a state

prisoner has defaulted his federal claims in state court

pursuant to an independent and adequate state procedural

rule, federal habeas review of the claims is barred unless the

prisoner can demonstrate cause for the default and actual

prejudice as a result of the alleged violation of federal law,

or demonstrate that failure to consider the claims will result

in a fundamental miscarriage of justice.” Coleman v.

Thompson, 501 U.S. 722, 750 (1991).

Under pre-AEDPA standards, we review a district

court’s denial of an evidentiary hearing for abuse of

discretion. Baja v. Ducharme, 187 F.3d 1075, 1077 (9th Cir.

1999).

IV. DISCUSSION

On appeal, Clark raises sixteen claims, of which six were

certified: (1) ineffective assistance of counsel for failing to

advise Clark to accept a plea offer; (2) violation of Clark’s

rights to due process and an impartial jury by juror

misconduct; (3) ineffective assistance of counsel for calling

Dr. Mayland to testify at the pre-trial suppression hearing;

(4) ineffective assistance of counsel in preparing and

presenting expert testimony; (5) ineffective assistance of

34 CLARK V. CHAPPELL

counsel for failing to investigate and present evidence of

Clark’s fetal alcohol exposure, traumatic birth, and the

ensuing effects on both; and (6) ineffective assistance of

counsel for failure to argue that Dino Stevens was an

alternative suspect or co-participant and prosecutorial

misconduct in failing to disclose information about Dino.

Clark also raises ten uncertified claims.

A. Evidentiary Hearing

Clark argues that the district court erred in denying his

motion for an evidentiary hearing for all claims. The district

court found that Clark had not “presented . . . colorable

claim[s] of” relief and that all subsequently certified claims,

as well as all of the uncertified claims could be “resolved on

the record.” Furthermore, the district court reasoned that

denial of an evidentiary hearing was warranted for Claim 36

(cumulative error) because “none of the errors alleged in the

fifth amended petition[] warrant relief.”

Under pre-AEDPA standards, a petitioner is entitled to

an evidentiary hearing if he can show: (1) the allegations, if

proven, would entitle him to relief, and (2) the state court

trier of fact had not reliably found the relevant facts after a

full and fair hearing. See Townsend v. Sain, 372 U.S. 293,

312–13 (1963), overruled in part by Keeney v. Tamayo-

Reyes, 504 U.S. 1 (1992); see also Earp v. Ornoski, 431 F.3d

1158, 1167 (9th Cir. 2005). We have found that the first

prong requires that a petitioner “establish[] a colorable claim

for relief,” based on allegations of “specific facts which, if

true, would entitle him to relief.” Earp, 431 F.3d at 1167 &

n.4 (footnote omitted) (quoting Ortiz v. Stewart, 149 F.3d

923, 934 (9th Cir. 1998), overruling on other grounds

recognized by Apelt v. Ryan, 878 F.3d 800, 827–28 (9th Cir.

2017)). And, for the second prong, we have held that the

CLARK V. CHAPPELL 35

petitioner must show that he “has never been afforded a state

or federal hearing on this claim.” Id. at 1167.

However, “[a]n evidentiary hearing is not required on

allegations that are ‘conclusory and wholly devoid of

specifics’” or “on issues that can be resolved by reference to

the state court record.” Campbell v. Wood, 18 F.3d 662, 679

(9th Cir. 1994) (en banc) (quoting Boehme v. Maxwell,

423 F.2d 1056, 1058 (9th Cir. 1970)). Nor is an evidentiary

hearing required if “there are no disputed facts and the claim

presents a purely legal question.” Hendricks v.

Vasquez, 974 F.2d 1099, 1103 (9th Cir. 1992).

As subsequently explained, reference to the state court

record resolves Issues 1, 3, 4, 5, and 6 and Claims 5, 6, 11,

14L, and 20. See Campbell, 18 F.3d at 679. Clark’s Claims

8, 14F, and 18 raise allegations that are conclusory and

wholly devoid of specifics. See id. Claim 15B, fails on the

second prong of Townsend because Clark has already been

“afforded a state . . . hearing on this claim.” Earp, 431 F.3d

at 1167. Furthermore, even viewed cumulatively (Claim

36), Clark has not shown that relief is warranted, and thus an

evidentiary hearing is not needed to resolve this claim. See

id. We therefore affirm the district court’s denial of an

evidentiary hearing for all of these listed claims because

Clark has not presented a colorable claim of relief. We

reserve for the district court to determine on remand whether

Issue 2 warrants an evidentiary hearing in light of Godoy v.

Spearman, 861 F.3d 956 (9th Cir. 2017) (en banc).

36 CLARK V. CHAPPELL

B. Certified Claims

1. Issue 1: We deny Clark’s claim that trial counsel

was ineffective by advising him to reject the plea

offer.

Clark argues that trial counsel provided ineffective

assistance of counsel because he recommended Clark reject

the state’s plea offer for life without parole. Specifically,

Clark argues that Allen’s recommendation constituted

ineffective assistance because Allen gave unsound advice

that Clark was likely to get second-degree murder.

Claims of ineffective assistance of counsel are governed

by Strickland, 466 U.S. 668. To prevail, the defendant’s

burden is two-pronged. “First, the defendant must show that

counsel’s performance was deficient.” Id. at 687. “Second,

the defendant must show that the deficient performance

prejudiced the defense.” Id. Even in a pre-AEDPA case,

“[j]udicial scrutiny of counsel’s performance must be highly

deferential.” Id. at 689.

To show deficient performance, the defendant must

show that “counsel’s representation fell below an objective

standard of reasonableness.” Id. at 688. This requires

“showing that counsel made errors so serious that counsel

was not functioning as the ‘counsel’ guaranteed the

defendant by the Sixth Amendment.” Id. at 687. “A fair

assessment of attorney performance requires that every

effort be made to eliminate the distorting effects of

hindsight, to reconstruct the circumstances of counsel’s

challenged conduct, and to evaluate the conduct from

counsel’s perspective at the time.” Id. at 689. Thus, “a court

must indulge a strong presumption that counsel’s conduct

falls within the wide range of reasonable professional

assistance.” Id. “[T]he defendant must overcome the

CLARK V. CHAPPELL 37

presumption that, under the circumstances, the challenged

action ‘might be considered sound trial strategy.’” Id.

(quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).

The Supreme Court has extended the Sixth Amendment

right to effective assistance of counsel to plea negotiations.

Missouri v. Frye, 566 U.S. 134, 140 (2012); Lafler v.

Cooper, 566 U.S. 156, 162 (2012). In Padilla v. Kentucky,

where counsel failed to inform his client of the consequence

of deportation from accepting a plea, the Supreme Court held

that “a petitioner must convince the court that a decision to

reject the plea bargain would have been rational under the

circumstances.” 559 U.S. 356, 372 (2010). The defendant,

though, has “the ultimate authority” to determine “whether

to plead guilty.” Jones v. Barnes, 463 U.S. 745, 751 (1983).

Counsel’s role, then, is to “both consult with the defendant

and obtain consent to the recommended course of action.”

Florida v. Nixon, 543 U.S. 175, 187 (2004). In other words,

the “role of counsel” under the Sixth Amendment is to

“advis[e] a client about a plea offer and an ensuing guilty

plea” and to provide “legal aid and advice [to] help” a

criminal defendant exercise his ultimate authority in making

a decision. Frye, 566 U.S. at 140, 144 (quoting Massiah v.

United States, 377 U.S. 201, 204 (1964)).

We need not reach Clark’s argument that Allen’s

performance was constitutionally deficient. Even if Allen’s

performance could have been construed as constitutionally

deficient, Clark had the benefit of multiple attorneys. We

read the Sixth Amendment “not [to] include the right to

receive good advice from every lawyer a criminal defendant

consults about his case.” United States v. Martini, 31 F.3d

781, 782 (9th Cir. 1994) (per curiam). We share the Sixth

Circuit’s perspective that as the Sixth Amendment’s

“recitations have been framed and phrased, they encompass

38 CLARK V. CHAPPELL

an affirmative right (the right to effective assistance of

counsel at critical proceedings), not a negative right (the

right to be completely free from ineffective assistance).”

Logan v. United States, 910 F.3d 864, 870 (6th Cir. 2018),

cert. denied, 139 S. Ct. 1589 (2019). When a “petitioner

receive[s] both competent and deficient advice on whether

to accept [a] plea offer . . . [s]uch conflicting advice

undercuts [the petitioner]’s claim of ineffective assistance of

counsel.” Id. at 869–70.

Clark not only received informative advice from Allen

but also from his other attorney, Brown. As noted in Dr.

Mayland’s 2005 declaration: “Mr. Brown and I tried very

hard to get [Clark] to accept the plea offer.” Having been

advised by both counsel, Clark ultimately “decided to go to

trial.” “[W]hen a defendant receives the necessary

information to make a call, the fact that the ultimate decision

is left to him does not render counsel absent or ineffective.”

Id. at 871. Here, as Allen declared, “[t]here was a division

in the defense camp” with Allen recommending trial and

“Brown [thinking] the plea was the best option.” “Such

conflicting advice undercuts [Clark]’s claim of ineffective

assistance of counsel.” Id. at 870.

Because Clark received adequate assistance at the plea-

bargain stage, we conclude that he “received his Sixth

Amendment right to effective assistance of counsel,

regardless of [Allen’s and Brown’s] contradictory advice.”

Id. We deny relief on Issue 1.

CLARK V. CHAPPELL 39

2. Issue 2: In light of Godoy v. Spearman, we

remand for further proceedings on Clark’s claim

that his rights to due process and an impartial jury

were violated when a juror communicated with

his minister.

Clark argues that his rights to due process and an

impartial jury trial were violated because one of the jurors

consulted with his minister about the case during trial.

The Sixth Amendment ensures a right to an impartial

jury. Claims of improper juror contact with a third party are

governed by the Mattox/Remmer framework. In Mattox v.

United States, the Supreme Court underscored that “[i]t is

vital in capital cases that the jury should pass upon the case

free from external causes tending to disturb the exercise of

deliberate and unbiased judgment.” 146 U.S. 140, 149

(1892), called into doubt on other grounds by Warger v.

Shauers, 135 S. Ct. 521, 526–27 (2014). The Court

emphasized that: “Private communications, possibly

prejudicial, between jurors and third persons, or witnesses,

or the officer in charge, are absolutely forbidden, and

invalidate the verdict, at least unless their harmlessness is

made to appear.” Id. at 150 (granting a new trial where a

bailiff remarked to jurors that the defendant had killed two

other people and where a newspaper article discussing the

trial and the defendant’s criminal history was brought into

the jury room).

The Supreme Court in Remmer v. United States built

upon Mattox, holding that “[t]he presumption is not

conclusive, but the burden rests heavily upon the

Government to establish, after notice to and hearing of the

defendant, that such contact with the juror was harmless to

the defendant.” 347 U.S. 227, 229 (1954). The Court

explained that “a hearing with all interested parties” should

40 CLARK V. CHAPPELL

be conducted to “determine the circumstances, the impact

thereof upon the juror, and whether or not [the contact] was

prejudicial.” Id. at 230 (remanding for a hearing where FBI

agents contacted a juror regarding an alleged attempt to bribe

the juror and where the district court and prosecution ex

parte determined that the communication was harmless

without hearing from or informing the defendant).

In Godoy, we combined the analyses of Mattox and

Remmer into a “two-step framework”:

When a defendant alleges improper contact

between a juror and an outside party, the

court asks at step one whether the contact was

“possibly prejudicial.” Mattox, 146 U.S.

at 150. If so, the contact is “deemed

presumptively prejudicial” and the court

moves to step two, where the “burden rests

heavily upon the [state] to establish” the

contact was actually “harmless.” Remmer,

347 U.S. at 229. If the state does not prove

harmlessness, the court sets aside the verdict.

When the presumption arises but the

prejudicial effect of the contact is unclear, the

trial court must hold a “hearing” to

“determine the circumstances [of the

contact], the impact thereof upon the juror,

and whether or not it was

prejudicial.” Id. at 229–30.

861 F.3d at 962 (alterations in original) (parallel citations

omitted) (remanding for an evidentiary hearing where a juror

allegedly communicated with a “judge friend” about the case

while it was ongoing).

CLARK V. CHAPPELL 41

As an initial matter, even before triggering the

presumption, Godoy stresses that a determination must be

made into the type of contact at issue. “We recognize the

practical impossibility of shielding jurors from all contact

with the outside world, and also that not all such contacts

risk influencing the verdict.” Id. at 967 (emphasis added).

“[D]ue process does not require a new trial every time a juror

has been placed in a potentially compromising

situation.” Smith v. Phillips, 455 U.S. 209, 217 (1982); see

also Tarango v. McDaniel, 837 F.3d 936, 946 (9th Cir.

2016). For example, “chance contacts between witnesses

and jury members—while passing in the hall or crowded

together in an elevator,” do not trigger the presumption

because they are “[t]hreadbare or speculative allegations” of

misconduct. Godoy, 861 F.3d at 967 (quoting Tarango,

837 F.3d at 947, 951); see also United States v. Hendrix,

549 F.2d 1225, 1229 (9th Cir. 1977) (finding that “not every

incident of juror misconduct or bias requires a new trial”).

Thus, folded into defendant’s burden at step one, before

triggering the presumption, is a showing that the juror’s

contact with the non-juror was “sufficiently improper.”

Godoy, 861 F.3d at 967 (emphasis added).

Once the contact has been determined to be sufficiently

improper, the court moves on to the second half of the first

step: determining whether the sufficiently improper contact

gives rise to a “credible risk of affecting the outcome of the

case.” Id. at 967 (emphasis added). Godoy instructs that

“the defendant’s burden at step one to show a possibility of

prejudice is not onerous.” Id. at 968. Because “highly

troubling contacts do not necessarily raise a presumption of

prejudice,” courts “consider[] the full context of the contact

to determine whether a credible risk of prejudice exists.” Id.

at 967. For example, was the communication significant

because it was with a non-juror who was “deeply entangled

42 CLARK V. CHAPPELL

in [the] case” (such as a bailiff, law enforcement agent,

victim, or witness), or was the communication “innocuous”?

Id. at 967–68 (alteration in original) (quoting Tarango,

837 F.3d at 949). To determine “whether the

communication raised a risk of influencing the verdict,” the

court may consider factors such as “the length and nature of

the contact, the identity and role at trial of the parties

involved, evidence of actual impact on the juror, and the

possibility of eliminating prejudice through a limiting

instruction.” Caliendo v. Warden of Cal. Men’s Colony,

365 F.3d 691, 697–98 (9th Cir. 2004). Taking the

“surrounding circumstances” into consideration, when the

juror’s improper communication with a non-juror interferes

with the juror’s role as a juror and infects the jury as a whole,

it raises a credible risk of affecting the outcome. Godoy

establishes that when the juror’s communication is

sufficiently improper to raise a credible risk of affecting the

outcome, then there is a presumption of prejudice. 861 F.3d

at 968.

Once the presumption of prejudice is triggered, the

burden shifts to the state “to disprove prejudice.” Id. at 959.

Godoy illustrates a cautionary tale in its finding that the

California Court of Appeal erred by “not requir[ing] the state

to make any showing at step two.” Id. at 964. The state must

present “contrary evidence” and “[i]t is not enough, as the

state court did [in Godoy], to draw contrary inferences from

the same statement that established the presumption in the

first place.” Id. at 959; see also Tex. Dep’t of Cmty. Affairs

v. Burdine, 450 U.S. 248, 254 (1981) (finding that, upon the

burden shifting, when the defendant “is silent in the face of

the presumption, the court must enter judgment for the

plaintiff because no issue of fact remains in the case”). We

provided an instructive, non-exhaustive list of examples in

Godoy, including that the prosecution could point to

CLARK V. CHAPPELL 43

“contrary evidence elsewhere in the existing record that

sheds new light on the potentially prejudicial

communication.” Godoy, 861 F.3d at 969. Or, if the

prejudicial effect is “unclear from the existing record,” a

hearing may allow the court to “determine the circumstances

[of the improper contact], the impact thereof upon the juror,

and whether or not it was prejudicial.” Id. at 959 (quoting

Remmer, 347 U.S. at 229–30).

Almost a decade after Clark’s conviction, the defense

obtained a declaration from Juror Barnes. In his 1996

declaration, Barnes explained that, during the guilt phase of

trial, he met with his “minister about the propriety of

imposing the death penalty.” After “explain[ing] to [the

minister his] role in the trial and the facts of the case,” the

minister told him “that in these circumstances the death

sentence would be appropriate because the Bible says, ‘an

eye for an eye.’” According to Juror Barnes’ declaration,

“[t]he minister’s advice was useful,” and Barnes affirmed

that he “had long believed that anyone who is guilty of

murder and convicted with a special circumstance should be

given the death penalty.”

Although the district court found that “the contact

between Barnes and his minister was insufficient to raise a

presumption of a substantial and injurious effect on the

verdict,” the district court did not have the benefit of our

decision in Godoy to determine whether the contact was

“sufficiently improper” and raised “a credible risk of

affecting the outcome of the case.” Godoy, 861 F.3d at 967.

When faced with a determination of applying a new legal

principle, “[a] standard practice, in habeas and non-habeas

cases alike, is to remand to the district court for a decision in

the first instance.” Detrich v. Ryan, 740 F.3d 1237, 1248

(9th Cir. 2013) (en banc). “[W]e operate more effectively as

44 CLARK V. CHAPPELL

a reviewing court than as a court of first instance.” Id. at

1248–49. Because “we are without the benefit of the district

court’s analysis” on the new standard, Shirk v. U.S. ex rel.

Dep’t of Interior, 773 F.3d 999, 1007 (9th Cir. 2014), we

remand to the district court to apply in the first instance our

Godoy framework.

By remanding, we are not opining that the district court

was incorrect in its conclusion or reasoning but only

directing it to apply the new standard. For guidance, we

emphasize that Godoy does not say that all juror

communications with a non-juror require that the verdict or

sentence be set aside. 3 Inherent in the first step of Godoy is

first determining whether the contact was “sufficiently

improper” and then determining whether that improper

contact had a “credible risk of influencing the verdict.” If,

and only if, the court finds that these steps are satisfied is the

presumption triggered and the subsequent steps reached. We

do not opine whether now, over 30 years after Clark’s trial,

an evidentiary hearing is required. However, if the district

court finds the presumption triggered, the state must address

its burden of showing that Barnes’ contact with his minister

was harmless—in other words, that there was “no reasonable

possibility that the communication . . . influence[d] the

verdict,” Godoy, 861 F.3d at 968 (quoting Caliendo,

365 F.3d at 697), including the communication impacting

the jury’s deliberations, id. at 970. Investigator Wong’s

declaration, which was previously before the district court

but which the state’s counsel inexplicably failed to address

on appeal, might support such a conclusion. However,

because we remand for the district court to apply Godoy, we

do not reach the evidentiary issues raised by the parties,

3

If the contact occurred after the jury found Clark guilty but before

sentencing, it would have affected the sentence, not the verdict.

CLARK V. CHAPPELL 45

including the admissibility of the Wong declaration. We

leave it to the district court on remand to consider this

evidence and any other evidence proffered by the parties

when making the determination whether or not to hold an

evidentiary hearing in fulfilling its responsibility to

determine whether Barnes’ meeting with his minister was

harmless. Again, we emphasize that the district court should

read nothing more into our opinion than to apply the new

standard in the first instance.

3. Issue 3: We deny Clark’s claim that trial counsel

was ineffective for calling Dr. Mayland to testify

at the pre-trial suppression hearing.

Clark argues that trial counsel provided ineffective

assistance of counsel by calling Dr. Peter Mayland to testify

at the pre-trial suppression hearing. In particular, Clark

argues that trial counsel was ineffective in three ways:

(1) trial counsel called Dr. Mayland to testify without full

knowledge of what Dr. Mayland would say; (2) trial counsel

failed to obtain a court order assuring that Dr. Mayland’s

pre-trial testimony would not be used at trial; and (3) trial

counsel failed to ensure that the trial experts were not

exposed to inculpatory information from Dr. Mayland’s pre-

trial testimony. In holding that Allen did not act deficiently,

the district court found that it was not unreasonable for Allen

to rely on his belief that the trial court had stated that the

statements from the suppression hearing would not be

admissible at trial. Although we agree that Allen’s reliance

may not have been unreasonable, it was deficient for Allen

to call Dr. Mayland to testify at the suppression hearing

without Allen having fair knowledge of his testimony.

Nonetheless, we conclude that Clark fails to show that he

was prejudiced by Allen’s performance.

46 CLARK V. CHAPPELL

a. Allen’s performance was deficient.

Allen’s calling Dr. Mayland to testify at the pre-trial

suppression hearing without having fair knowledge of his

testimony constitutes representation that “fell below an

objective standard of reasonableness.” Strickland, 466 U.S.

at 688; see also supra Part IV(B)(1).

Allen’s 2005 declaration indicates that Dr. Mayland’s

testimony was intended to establish that “as a result of

Mr. Clark’s background and psychological disabilities, there

was a substantial doubt as to whether Mr. Clark knowingly

and intelligently waived his rights” when he confessed to the

police. Dr. Mayland’s 2005 declaration indicates that his

role was focused on “Mr. Clark’s traumatic history,

deprivations, inadequate institutional responses, and

substance abuse background.” Clark argues, however, that

Allen should have been aware that Dr. Mayland had

developed a therapeutic relationship with Clark and had

questioned Clark extensively about the particular facts of the

crimes. In particular, at the suppression hearing,

Dr. Mayland testified on cross-examination that Clark had

discussed the details of the crimes with Dr. Mayland not just

once in the initial interview at the Mendocino County Jail

after his arrest (which Allen knew about), but also in an

interview about a month after the initial interview (which

Allen apparently was not informed). Dr. Mayland then

testified to the detailed facts of the crimes that Clark relayed

to him, including the two lewd statements made by Clark to

Grover, Clark’s admission of rape, and Clark’s account of

the crimes that appears to undercut the defense theory of a

rage reaction. Allen’s declaration acknowledges that he was

“surprised to learn that Dr. Mayland had discussed the facts

of the crime with [Clark] beyond his initial interview, and

what information Dr. Mayland had obtained from [Clark].”

CLARK V. CHAPPELL 47

Allen’s unawareness of the extent to which his own

expert witness would testify is deficient performance under

Strickland. Trial counsel is not required to personally

interview each witness, especially “if the witness’s account

is fairly known to counsel.” LaGrand v. Stewart, 133 F.3d

1253, 1274 (9th Cir. 1998) (citing Eggleston v. United

States, 798 F.2d 374, 376 (9th Cir. 1986)). However,

counsel must have a fair knowledge of the witness’s account

before calling the person as a witness. Here, the record

indicates that Allen was unaware that Dr. Mayland had

discussed the facts of the crimes with Clark beyond the

initial interview. However, Allen regularly discussed the

case with Dr. Mayland and had a definite defense strategy of

using Dr. Mayland as an expert. This highlights the

unreasonableness of Allen failing to ascertain Dr. Mayland’s

account before calling him as a witness. Because Allen

called Dr. Mayland to testify without Dr. Mayland’s account

being “fairly known to counsel,” id. at 1274, Allen’s conduct

was objectively unreasonable. 4

b. Clark fails to establish prejudice.

Although Allen’s conduct was deficient, Clark fails to

establish that Allen’s performance was prejudicial. To show

prejudice, Clark must establish that “counsel’s errors were

so serious as to deprive the defendant of a fair trial, a trial

whose result is reliable.” Strickland, 466 U.S. at 687. “An

error by counsel, even if professionally unreasonable, does

not warrant setting aside the judgment of a criminal

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

4

Clark raises several arguments for why trial counsel acted

deficiently in regard to Dr. Mayland’s testimony. Because we conclude

Allen acted unreasonably by calling Dr. Mayland without fair knowledge

of his testimony, we need not reach these additional arguments.

48 CLARK V. CHAPPELL

at 691. Accordingly, a defendant must show “there is a

reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been

different.” Id. at 694. “A reasonable probability is a

probability sufficient to undermine confidence in the

outcome.” Id.

When a defendant challenges a death sentence, 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.” Id. at 695.

To answer that question, we must “compare the evidence

that actually was presented to the jury with the evidence that

might have been presented had counsel acted differently,”

Bonin v. Calderon, 59 F.3d 815, 834 (9th Cir. 1995), and

“evaluate whether the difference between what was

presented and what could have been presented is sufficient

to ‘undermine confidence in the outcome’ of the

proceeding,” Lambright v. Schriro, 490 F.3d 1103, 1121 (9th

Cir. 2007) (per curiam) (quoting Strickland, 466 U.S.

at 694).

Clark fails to meet his burden. Clark focuses on the two

lewd remarks that Clark told Dr. Mayland he made to

Grover, 5 which, according to Clark, were the “main

statements that were to infect the trial later.” However, the

same or similar information was admitted at trial through

Clark’s two confessions and defense expert testimony.

Detective Kelley testified: “[Clark] said that, this is in his

5

At the pre-trial suppression hearing, Dr. Mayland testified that

Clark admitted to him that Clark demanded of Grover, “Why don’t you

show me some tit, bitch” and “suck my dick.”

CLARK V. CHAPPELL 49

words, ‘she flashed a titty at me.’” Clark admitted similar

information in his taped confession, in which he talks about

Grover exposing her breasts to him. Defense expert

Dr.Raffle testified at trial, summarizing that Clark admitted

to him that he told Grover “to take off her clothes, suck [his]

dick.” Clark fails to establish that the lewd statements he

admitted to Dr. Mayland differ from any of the lewd

statements he admitted during his confessions to the police

and during his sessions with Dr. Raffle, which were

disclosed to the jury without any objection by Clark.

Furthermore, to the extent that Clark argues prejudice

from the prosecution using Dr. Mayland’s statements to

impeach the defense witnesses’ theory of a rage reaction by

showing that Clark was goal-oriented in his behavior, Clark

also fails to meet his burden. Almost all of the details that

were included in Dr. Mayland’s testimony came in through

the two police confessions. In Clark’s first confession to the

police, he did not discuss blacking out during the crimes.

However, Clark admitted choking Grover, stabbing her, and

hitting her with the concrete block. The primary detail not

included in Clark’s confession to the police was Clark’s

admission of rape. But in addition to the physical evidence

presented at trial that indicated rape (e.g., vaginal lacerations

and semen and pubic hair consistencies), defense experts

Drs. Roberts and Raffle testified that Clark admitted to them

that he raped Grover.

Given the gruesome nature of the crimes and that Clark

never asserted innocence, Clark is hard-pressed to establish

that Dr. Mayland’s testimony prejudiced him. To

demonstrate prejudice, Clark must show that “there is a

reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been

different.” Franklin v. Johnson, 290 F.3d 1223, 1233 (9th

50 CLARK V. CHAPPELL

Cir. 2002) (quoting Babbitt v. Calderon, 151 F.3d 1170,

1173 (9th Cir. 1998)). Because Clark fails to demonstrate a

reasonable probability that Dr. Mayland’s reference to

Clark’s lewd statements or his statements concerning Clark

being goal-oriented affected the jury’s balance of

aggravating circumstances and mitigating circumstances, we

conclude he fails to establish prejudice necessary to show

ineffective assistance of counsel on this claim.

We deny habeas relief on Issue 3.

4. Issue 4: We deny Clark’s claim that trial counsel

was ineffective in preparing and presenting

expert testimony.

Clark argues that trial counsel was ineffective in the

preparation and presentation of expert testimony.

Specifically, Clark argues that counsel failed to adequately

prepare: (a) experts regarding Dr. Beaber’s letter and

Dr. Mayland’s statements; (b) expert witness Dr. Roberts;

and (c) expert witness Dr. Raffle.

Strickland governs this ineffective assistance of counsel

claim: Clark must show that trial counsel’s performance was

both deficient and prejudicial. See 466 U.S. at 687; see also

supra Part IV(B)(1), (B)(3)(b). “[T]he duty to investigate

and prepare a defense” is flexible, but it “is not limitless: it

does not necessarily require that every conceivable witness

be interviewed or that counsel must pursue ‘every path until

it bears fruit or until all conceivable hope withers.’” United

States v. Tucker, 716 F.2d 576, 584 (9th Cir. 1983) (quoting

Lovett v. Florida, 627 F.2d 706, 708 (5th Cir. 1980)).

CLARK V. CHAPPELL 51

a. Allen’s conduct regarding Dr. Beaber’s

letter did not prejudice Clark.

Clark first argues that Allen failed to adequately prepare

the testifying experts regarding Dr. Beaber’s letter. Clark

does not argue that counsel was deficient for failing to seek

suppression of Dr. Beaber’s letter or in having Dr. Beaber’s

letter prepared in the first instance. Instead, Clark asserts

that Allen was unaware of the existence of Dr. Beaber’s

letter and that he unintentionally gave Dr. Beaber’s letter to

Dr. Raffle. In essence, Clark argues had counsel not given

the letter to the testifying experts or had Allen discussed the

letter with the experts in detail, the outcome of trial would

have been different. Because we conclude that Clark fails to

establish prejudice, we need not address whether Allen’s

conduct was deficient.

Clark fails to establish prejudice because his arguments

are contradicted by the record. When confronted with

Dr. Beaber’s letter during cross-examination, Dr. Raffle

responded:

It does not give me any of his clinical data,

nor do I have available to me any of his

clinical data for analysis. That is to say his

testing data.

It would be—it’s kind of equivalent to a

radiologist taking a series of X-rays and

sending me a three-paragraph summary but

not sending the X-rays so that I could have

another radiologist look at them myself.

Dr. Raffle’s testimony indicates that he found the contents

of the letter unhelpful. Given that Dr. Raffle responded by

noting the lack of underlying clinical data and the report’s

52 CLARK V. CHAPPELL

brevity, Clark fails to demonstrate how he was prejudiced by

Allen’s performance.

b. Allen’s preparation of Dr. Roberts to testify

did not prejudice Clark.

Second, Clark argues that the outcome of trial would

have been different had Allen better prepared Dr. Roberts to

testify. The defense called Dr. Roberts as an expert witness

during the guilt phase to testify to Clark’s impulsivity under

stress and Clark’s drug use. Clark asserts that trial counsel

should have never called Dr. Roberts to testify because his

opinion that Clark’s depression was “situational” was

contrary to the use of Clark’s depression as mitigation. He

also asserts that counsel failed to provide Dr. Roberts with

an adequate clinical history in order to render a proper

diagnosis.

The record, however, indicates that Dr. Roberts

interviewed Clark and conducted extensive psychological

testing in preparation for trial. Based on the tests Dr. Roberts

conducted, Dr. Roberts reported a diagnosis of anti-social

personality disorder (“ASPD”), as well as some indications

of borderline personality disorder. Although Dr. Roberts

requested more information regarding Clark’s mental health

history, trial counsel referred Dr. Roberts only to the history

contained in Dr. Raffle’s report. Trial counsel apparently

was not aware at the time that the historical data portion of

Dr. Raffle’s report was incomplete. But Dr. Roberts has not

indicated that his testimony regarding Clark’s various test

scores was incorrect or would have changed in light of any

additional information that could have been provided.

Clark’s primary argument seems to be that, if Dr. Roberts

had more complete information about Clark’s history than

was contained in Dr. Raffle’s report, Dr. Roberts may have

been able to offer reasons why a borderline personality

CLARK V. CHAPPELL 53

disorder was a better diagnosis than ASPD. But even then,

trial counsel’s tactical decision to put on a witness who had

diagnosed Clark with ASPD, rather than stress a possible

borderline personality disorder, is entitled to great deference.

Mitchell v. United States, 790 F.3d 881, 892 (9th Cir. 2015)

(rejecting Mitchell’s argument that “counsel should have

had Mitchell examined again by yet another doctor in search

of a less damning diagnosis”). The record does not support

Clark’s argument that had Allen acted differently in calling

and preparing Dr. Roberts to testify, the result of trial would

have been different.

c. Allen’s conduct in preparing Dr. Raffle to

testify was not deficient.

Third, Clark argues that trial counsel was deficient in the

preparation of defense expert Dr. Raffle, who was asked to

render an opinion regarding Clark’s psychological state at

the time of the crimes. In particular, Clark argues that

Dr. Raffle did not have sufficient information regarding

Clark’s background and history to render an opinion.

The record, however, indicates that, while Dr. Raffle did

not have all the documents related to Clark’s history, counsel

did provide Dr. Raffle with substantial background

materials, including school psychologists’ evaluations and

state mental health records. Clark emphasized Dr. Raffle’s

lack of information about the jailhouse report that Clark had

been “boastful and cocky” about the crimes and about drug

levels in Clark’s blood at the time of the crimes. But the

record provides a reasonable explanation for Dr. Raffle’s

lack of awareness of these matters. The trial transcript

reflects that counsel did not even know about the jailhouse

report when Dr. Raffle testified. Given that counsel did not

have the report at the time, he could not have given the report

to Dr. Raffle. Regarding the drug levels in Clark’s blood at

54 CLARK V. CHAPPELL

the time of the crimes, trial counsel’s declaration indicates

that witnesses Drs. Baselt and Smith were the experts

charged with testifying about Clark’s level of intoxication at

the time of the crimes, not Dr. Raffle. Moreover, although

Dr. Raffle had some training in psychopharmacology, this

was not Dr. Raffle’s specialty. Counsel’s tactical decision

to have different witnesses testify regarding the level of

methamphetamine and other drugs in Clark’s blood at the

time of the crimes is entitled to deference. Mitchell,

790 F.3d at 892. We find that Clark has not shown that

Allen’s performance was deficient in preparing Dr. Raffle to

testify. 6

We therefore conclude that Clark has not established

ineffective assistance of counsel in the preparation and

presentation of expert testimony. We deny habeas relief on

Issue 4.

5. Issue 5: We deny Clark’s claim that trial counsel

was ineffective for failing to investigate and

present evidence, at the penalty phase, of Clark’s

fetal alcohol exposure, traumatic birth, and the

effects of both.

Clark argues that trial counsel provided ineffective

assistance of counsel for failing to investigate, prepare, and

present evidence of Clark’s alcohol exposure as a fetus,

traumatic birth, and the enduring effects of both on Clark’s

development. Clark asserts that four experts’ post-

conviction declarations show that his “medical records

contained evidence that he had a difficult birth and that his

mother was heavily medicated”; “that his mother was

6

However, even if we determined that Clark could show deficiency,

Clark has not shown prejudice.

CLARK V. CHAPPELL 55

drinking alcohol during her pregnancy and suffering

beatings by Mr. Clark’s father”; and “that Mr. Clark’s

difficulties in this area continued into childhood, with

developmental delays.”

Again, under Strickland, Clark must show that trial

counsel’s performance was both deficient and prejudicial.

See 466 U.S. at 687; see also supra Part IV(B)(1). Counsel’s

duty to investigate is “not limitless.” Tucker, 716 F.2d

at 584. “[A] tactical decision may constitute constitutionally

adequate representation even if, in hindsight, a different

defense might have fared better.” Bemore v. Chappell,

788 F.3d 1151, 1163 (9th Cir. 2015). We conclude that trial

counsel’s performance was not deficient.

To establish deficient performance, the petitioner must

show that “counsel’s representation fell below an objective

standard of reasonableness.” Strickland, 466 U.S. at 688;

see also supra Part IV(B)(1).

During trial, Clark’s counsel presented a defense theory

that centered around disputing that he was able to form the

requisite state of mind to kill based on his emotional

difficulties, severe depression, and chronic drug use that

culminated in a “rage reaction” on the night of the murder.

The defense called several witnesses to testify that he used

drugs from an early age and regularly ingested alcohol,

marijuana, and methamphetamine. Witnesses also testified

that Clark was severely depressed, attempted suicide in

February 1985, and increased his drug usage following the

suicide attempt. During the penalty phase, the defense

presented testimony of 23 witnesses in mitigation—

including family members, friends, scoutmasters, a teacher

and a mental health counselor—who testified to the

circumstances of Clark’s life and character.

56 CLARK V. CHAPPELL

While Clark’s counsel did not present evidence of the

trauma Clark may have suffered in utero and during birth,

Allen did investigate and make a substantial presentation of

evidence of Clark’s childhood, his abuse, and the resulting

effects of both on Clark’s mental and psychological

development. Clark is essentially arguing on appeal that his

trial counsel should have investigated further and presented

a more complete picture of his life history or presented it in

a different manner—beginning with his mother’s pregnancy.

But Allen did present extensive evidence of Clark’s parents’

alcohol use, his father’s abuse, Clark’s early use of drugs and

alcohol, his difficulties in school, his severe depression, and

how his family life drastically deteriorated after the deaths

of his father and grandfathers—including his mother’s

neglect and the filthy home conditions. Allen painted a

bleak picture of Clark’s home life as a child and teenager and

its effects on Clark’s development, arguably mitigating the

heinousness of the crimes. Perhaps, Allen could have done

more—as indicated by Dr. Roberts’s declaration that his

request for additional information was denied by Allen. But

a showing of deficient performance turns not on whether

Allen could have done more but on whether his conduct was

deficient according to professional “standards in effect at the

time of [Clark’s] trial.” Hamilton v. Ayers, 583 F.3d 1100,

1129 (9th Cir. 2009).

The standards in effect at the time of Clark’s trial in 1987

recognized that “[i]t is the duty of the lawyer to conduct a

prompt investigation of the circumstances of the case and to

explore all avenues leading to facts relevant to the merits of

the case and the penalty in the event of conviction.” Id.

(quoting 1 ABA Standards for Criminal Justice 4–4.1 (2d ed.

1980)); see also id. (“As the Supreme Court has long

recognized, the ABA Standards for Criminal Justice provide

guidance as to what constitutes a ‘reasonable’ performance.”

CLARK V. CHAPPELL 57

(quoting Strickland, 466 U.S. at 688–89)). Unlike cases

where we have found deficient performance for failing to

investigate and present mitigating evidence, here Allen

presented extensive evidence of Clark’s childhood abuse,

early use of drugs and alcohol, difficulties in school, and

severe depression. Cf. Summerlin v. Schriro, 427 F.3d 623,

631 (9th Cir. 2005) (en banc) (holding that counsel “utterly

failed in his duty to investigate and develop potential

mitigating evidence for presentation at the penalty phase” by

not conducting any investigation into family or social history

and “even a minimal investigation” would have uncovered a

childhood with severe abuse). Much of the evidence that

Clark argues, post-conviction, should have been presented

goes to explain why Clark was the way that Allen presented

him to the jury, not that Clark was presented in an incorrect

or incomplete light to the jury. The evidence developed

post-conviction does not suggest that Allen’s presentation of

Clark’s troubled background was objectively unreasonable.

Allen presented the jury with substantial evidence of Clark’s

difficult childhood, his depression, and his drug use. The

later-developed evidence does not dispute this, but rather

offers an additional perspective on Clark’s character. But

this does not establish unreasonable performance. See

Gustave v. United States, 627 F.2d 901, 904 (9th Cir. 1980)

(“Mere criticism of a tactic or strategy is not in itself

sufficient to support a charge of inadequate

representation.”).

We conclude that Clark fails to establish that Allen’s

performance was deficient in not investigating, preparing,

and presenting evidence of Clark’s alcohol exposure as a

58 CLARK V. CHAPPELL

fetus, traumatic birth, and the enduring effects of both. 7 We

deny habeas relief on Issue 5.

6. Issue 6: We deny Clark’s claim that trial counsel

was ineffective for failing to argue that Dino

Stevens was an alternative suspect and that the

state committed prosecutorial misconduct for

failing to disclose information about Dino.

Clark argues that: (a) his trial counsel provided

ineffective assistance of counsel by failing to investigate and

present evidence that Dino Stevens was an alternative

suspect or co-participant in the crimes; and (b) the state

committed prosecutorial misconduct by failing to disclose

information about Dino to the defense.

Strickland governs this ineffective assistance of counsel

claim: Clark must show that trial counsel’s performance was

both deficient and prejudicial. See 466 U.S. at 687; see also

supra Part IV(B)(1). We conclude that Clark does not meet

his burden of showing that Allen’s conduct was deficient or

that he was prejudiced by the prosecution’s failure to

disclose information about Dino.

a. Counsel’s performance was not deficient.

Deficient performance requires showing that “counsel’s

representation fell below an objective standard of

reasonableness.” Strickland, 466 U.S. at 688.

Clark’s arguments that trial counsel was deficient in

failing to investigate and present evidence that Dino was an

7

However, even if we determined that Clark could show deficiency,

Clark has not shown prejudice.

CLARK V. CHAPPELL 59

alternative suspect or involved in Grover’s murder, are

unavailing. Clark argues that Dino was the last person with

him before Grover was murdered, had a history of drug use

and violence towards women, gave contradicting stories to

the police about his whereabouts during the murder, and

claimed to have known Grover. In support, Clark points to

post-conviction declarations by: (a) his brother Robert

Clark, who stated Dino admitted to being present during the

murder; (b) his ex-girlfriend Debra Dilman, who stated Dino

admitted that he and Clark met Grover at the bus station; and

(c) Dino’s ex-girlfriend Tami Scribner, who stated that Dino

asked her to lie about him staying at her home on the night

of the murder and that Dino told her that he found the

screwdriver in the car. Based on this evidence, Clark argues

that Allen acted unreasonably in not investigating Dino

because this information would have cast doubt on Clark

committing the crimes, would have undermined his

confessions, and would have supported the defense theory at

trial that Clark was so intoxicated that he could not

accurately remember what transpired.

At best, Clark has offered a different trial strategy that,

in hindsight, he claims could have been more fruitful than

the strategy taken at trial. See Gustave, 627 F.2d at 904

(“Mere criticism of a tactic or strategy is not in itself

sufficient to support a charge of inadequate

representation.”). According to his 2005 declaration, Allen

looked into pursuing a third-party defense theory but

discarded it in light of Clark’s confessions. Asserting that

Dino had been present would have contradicted Clark’s

confessions. However, the sincerity and truthfulness of

Clark’s confessions was an integral part of the defense’s

strategy to avoid the death penalty.

60 CLARK V. CHAPPELL

Furthermore, given the extent of physical evidence

linking Clark to the crimes, the record shows Allen acted

reasonably in not pursuing a defense based on Dino’s alleged

involvement. Even taking the most egregious declaration—

Robert Clark’s declaration that Dino admitted being present

during Grover’s murder—and assuming its admissibility and

credibility, the record is silent on any evidence to support

this assertion. The hair, blood, and semen linked Clark and

Grover, not Dino and Grover. The pubic hair found on

Grover’s body was consistent with Clark’s and the analysis

of semen found on Grover’s body could not rule out Clark

as a source. The blood and hair found on Clark’s jeans and

shoes were consistent with both Clark’s and Grover’s.

Moreover, Clark never once mentioned Dino’s involvement,

including in his report to the police at the Ron-Dee-Voo

restaurant, his two police confessions, or to any of the mental

health experts. Based on the overwhelming evidence, it was

reasonable to view Dino’s involvement as a weak theory, at

best, and to decide to pursue other avenues. Clark, thus, has

not shown Allen’s performance fell below an objective

standard of reasonableness. 8

b. Alleged Prosecutorial Misconduct

Clark also argues that the prosecution engaged in

misconduct by failing to disclose that Dino: (1) had

“favorable resolutions” for pending charges and offered to

“make a deal”; and (2) gave statements to the prosecution

during pre-trial investigations that were inconsistent with his

trial testimony regarding drug use.

8

However, even if we determined that Clark could show deficiency,

Clark has not shown prejudice.

CLARK V. CHAPPELL 61

Under Brady v. Maryland, “suppression by the

prosecution of evidence favorable to an accused upon

request violates due process where the evidence is material

either to guilt or to punishment, irrespective of the good faith

or bad faith of the prosecution.” 373 U.S. 83, 87 (1963); see

also Kyles v. Whitley, 514 U.S. 419, 433 (1995) (explaining

that post-Brady case law has made “clear that a defendant’s

failure to request favorable evidence [does] not leave the

Government free of all obligation”). “[T]here are three

elements to a Brady violation: (1) ‘the evidence at issue must

be favorable to the accused, either because it is exculpatory,

or because it is impeaching,’ (2) ‘that evidence must have

been suppressed by the State, either willfully or

inadvertently,’ and (3) ‘prejudice must have ensued.’” Reis-

Campos v. Biter, 832 F.3d 968, 975 (9th Cir. 2016) (quoting

Strickler v. Greene, 527 U.S. 263, 281–82 (1999)). “With

respect to the prejudice element, ‘evidence is material only

if there is a reasonable probability that, had the evidence

been disclosed to the defense, the result of the proceeding

would have been different.” Id. (quoting United States v.

Bagley, 473 U.S. 667, 682 (1985)). “A ‘reasonable

probability’ is a probability sufficient to undermine

confidence in the outcome.” Id. (quoting Bagley, 473 U.S.

at 682).

First, Clark asserts that, although the prosecution

provided a criminal history report with most of Dino’s

arrests, the prosecution failed to disclose the “favorable

resolutions” of Dino’s multiple pending cases, one of his

arrests, and a request by Dino to “make a deal.” Clark

contends that this information could have been used to

impeach Dino to show that he was self-interested in

testifying favorably for the prosecution in order to receive

more lenient treatment in his own pending criminal charges.

We find this argument unpersuasive. In light of Clark’s

62 CLARK V. CHAPPELL

confessions and the overwhelming physical evidence against

Clark connecting him to the murder and rape, Dino’s role at

trial was so minimal that to impeach him would have been

inconsequential to the verdict.

Second, Clark’s assertion that the prosecution failed to

disclose its pre-trial investigative notes that indicate Dino

made a statement regarding drug use, which would have

contradicted his trial testimony, is also unavailing. At trial,

Dino denied his own drug use and claimed not to recall

knowing of any drug use by Clark and Robyn Boyd,

including on the night of the murder, other than some

occasional marijuana. Clark, in contrast, argues that the

prosecution failed to disclose investigation notes indicating

that Dino said that Boyd did not want to admit that Dino

stayed at her home on the night of the murder because of her

involvement with drugs. Clark contends that this

information would have impeached Dino’s drug use

testimony and would have raised doubts about Clark’s

confessions and his intent, and thus would have resulted in a

different verdict and sentence.

However, the prosecutor’s notes provide minimal

support for Clark’s intoxication defense beyond the

extensive evidence already presented on Clark’s drug use.

During Clark’s taped confession at the police station, he

described his drug use. Clark’s drug use on the night of the

murder was the subject of testimony of several witnesses,

including David Smith, who testified that he and Clark used

cocaine on the night of the murder, and Matt Williams, who

testified that at 10:00 p.m. on the night of murder, Clark

appeared to be under the influence of something other than

alcohol. In light of this evidence, Clark has not shown a

reasonable probability that, had the prosecutor’s notes been

CLARK V. CHAPPELL 63

disclosed to the defense, the result of the proceeding would

have been different.

We deny habeas relief on Issue 6.

C. Uncertified Claims

In addition to the certified claims, Clark raises a number

of uncertified claims. First, we reject the state’s argument

that certain claims are procedurally barred from federal

review. Second, we grant a COA on seven of the ten

uncertified claims, and deny a COA on the others. Third, we

deny habeas relief on all seven newly certified claims.

1. We reject the state’s argument that Claims 14L,

18, and 20 are procedurally barred from federal

review.

Based on the California Supreme Court’s denial of

Clark’s second state habeas petition, the state argues that

portions of certain claims are procedurally barred from

federal court review because Clark failed to overcome the

procedural default. In particular, the state argues that the

California Supreme Court denied relief as untimely because

the claims could have been, but were not, raised on direct

appeal and because the claims were not filed in a timely

manner. See In re William Clark, 855 P.2d 729 (Cal. 1993);

Ex parte Dixon, 264 P.2d 513 (Cal. 1953). The state argues

that California’s procedural bars were adequate and

independent state grounds sufficient to preclude federal

review. See Johnson v. Lee, 136 S. Ct. 1802, 1804 (2016)

(per curiam) (reversing the Ninth Circuit “[b]ecause

California’s procedural bar is longstanding, oft-cited, and

shared by habeas courts across the Nation”); see also

Johnson v. Montgomery, 899 F.3d 1052, 1060 (9th Cir.

2018) (recognizing that California’s Dixon and timeliness

64 CLARK V. CHAPPELL

procedural bars are adequate and independent state law

grounds to bar federal habeas review). In response, Clark

argues that these procedural defaults are not applicable

because any default occurred before the California Supreme

Court issued its decisions in In re William Clark and In re

Robbins, 959 P.2d 311 (Cal. 1998).

The procedural bar doctrine is “a subcategory of the

independent and adequate state ground doctrine” designed

“to protect the state’s interests by giving it the opportunity

to correct its own errors.” Robinson, 595 F.3d at 1100; see

also Coleman v. Thompson, 501 U.S. 722, 749 (1991)

(“[W]e emphasize[] the important interests served by state

procedural rules at every stage of the judicial process and the

harm to the States that results when federal courts ignore

these rules[.]”). “Under this doctrine, a federal court

ordinarily will not review a state court ruling if the state court

would find that the claim was barred pursuant to an

independent and adequate state procedural rule.” Robinson,

595 F.3d at 1100. However, we have recognized exceptions

to the general rule for when “the petitioner can show either

cause and prejudice, see Coleman, 501 U.S. at 750, or a

fundamental miscarriage of justice, see Murray v. Carrier,

477 U.S. 478, 495 (1986), or [when] the government

waive[s] the procedural default, see Franklin v. Johnson,

290 F.3d 1223, 1230, 1233 (9th Cir. 2002).” Robinson,

595 F.3d at 1100 n.10 (parallel citations omitted); see also

Fields v. Calderon, 125 F.3d 757, 763 (9th Cir. 1997)

(discussing the exceptions that have been developed by the

California Supreme Court following Dixon and In re Harris,

855 P.2d 391, 398–407 (Cal. 1993)).

In California, “[t]he courts themselves have developed a

number of ‘procedural bars’ in an attempt to put reasonable

limits on collateral attacks by way of habeas corpus.” Briggs

CLARK V. CHAPPELL 65

v. Brown, 400 P.3d 29, 47 (Cal. 2017) (quoting In re William

Clark, 855 P.2d at 763–70). Two such limits include

procedural bars based on direct appeal (known as the Dixon

rule) and on timeliness (known as the Clark rule). The

bedrock to these principles is that “habeas corpus may not

be employed as a substitute for appeal.” Id. (citing In re

Waltreus, 397 P.2d 1001, 1005 (Cal. 1965)).

Under Dixon, a claim raised during habeas proceedings

is barred when the petitioner could have, but failed to, raise

the claim on direct appeal. See 264 P.2d at 513. We have

emphasized that “Dixon stands for the proposition that an

inexcusable failure to bring a trial-error claim on direct

appeal normally bars consideration of that claim on habeas.”

Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000).

However, if “the state court of last resort . . . exercise[d] its

opportunity to act on [petitioner’s] federal constitutional

claims, then no procedural default occurred that would bar

federal review of those claims.” Id. at 1151.

A second procedural default rule under California law

was established in In re William Clark related to timeliness.

855 P.2d at 751. There is “a presumption of timeliness for

habeas petitions filed ‘within 90 days of the final due date

for the filing of an appellant’s reply brief’” or “filed without

substantial delay, that good cause justified a substantial

delay, or that the petition fits within several enumerated

exceptions.” Bradford v. Davis, 923 F.3d 599, 610–11 (9th

Cir. 2019) (quoting In re William Clark, 855 P.2d at 751).

We have recognized that California’s timeliness rule for

procedural default must “be analyzed at the time the

petitioner filed his [applicable] state habeas petition” and

“not . . . when the California Supreme Court denied his

petition” or “he filed a [subsequent] state petition.” Id.

66 CLARK V. CHAPPELL

at 611 (citing Calderon v. U.S. Dist. Ct., 103 F.3d 72, 75 (9th

Cir. 1996)).

Here, the state has not met its burden of articulating the

basis for us to determine that Claims 14L, 18, and 20 are

procedurally barred. As Clark notes, the state’s procedural

bar argument on Claim 18 was not actually decided by the

district court who rejected procedural default only on

“Claims 14, 15, 20, 26 and 30.” Furthermore, although the

parties cite to the pertinent California Supreme Court

decision, none of these claims (Claims 14L, 18, 20) are listed

as such in that decision. If they are listed as different

numbered claims, the parties have not so argued. “[J]udges

are not like pigs, hunting for truffles buried in briefs.”

Greenwood v. F.A.A., 28 F.3d 971, 977 (9th Cir. 1994)

(quoting United States v. Dunkel, 927 F.2d 955, 956 (7th Cir.

1991) (per curiam)). The state does not provide the clarity

needed to reach this argument.

Because the state has not clearly shown that these three

claims are procedurally barred and because it appears that

the California Supreme Court rejected the claims on their

merits, we reject that Claims 14L, 18, and 20 are

procedurally barred, and we elect to address the merits on

these claims. 9

2. We grant in part a COA.

When a habeas petitioner seeks to initiate an appeal, the

petitioner must obtain a COA under 28 U.S.C. § 2253(c),

regardless of whether the petition was filed pre- or post-

9

We do not find that a clear showing of a procedural bar would not

bar us from addressing the merits of a claim, but only no such showing

was made here.

CLARK V. CHAPPELL 67

AEDPA. See Slack, 529 U.S. at 478, 480–81; see also

United States v. Martin, 226 F.3d 1042, 1045 (9th Cir. 2000).

In pre-AEDPA cases, as here, we must consider whether the

petitioner is entitled to a COA under AEDPA’s provisions,

but we apply pre-AEDPA law to the merits of the petition if

a COA is granted. See Slack, 529 U.S. at 482.

To obtain a COA, a petitioner must make “a substantial

showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2). This requires that a petitioner “demonstrate

that the issues are debatable among jurists of reason; that a

court could resolve the issues [in a different manner]; or that

the questions are adequate to deserve encouragement to

proceed further.” Lambright, 220 F.3d at 1025 (alteration in

original) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4

(1983)). Whether to grant a COA is a “threshold inquiry” to

entertaining an appeal, and we cannot consider the merits of

a claim until a COA has been issued on that claim. Slack,

529 U.S. at 482; see also Buck v. Davis, 137 S. Ct. 759, 773

(2017); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).

Clark has raised ten uncertified claims in his opening

brief on appeal, as permitted under our rules. See 9th Cir. R.

22-1(e). We treat Clark’s discussion of an uncertified issue

as a request to expand our grant of a COA. United States v.

Blackstone, 903 F.3d 1020, 1028 (9th Cir. 2018). Because

Clark has not made “a substantial showing of the denial of a

constitutional right,” 28 U.S.C. § 2253(c)(2), for Claims 8,

14F, and 15B, we deny a COA on these claims. 10 However,

10

Clark argues that Claim 22 (the use of Dr. Mayland’s testimony

from the pre-trial suppression hearing violated Clark’s right against self-

incrimination) should be certified because it is inextricably related to

certified Issue 3. Because Clark does not make arguments regarding

self-incrimination in his discussion of Issue 3 in his opening brief, this

68 CLARK V. CHAPPELL

Clark has met this threshold standard for Claims 5, 6, 11,

14L, 18, 20, and 36, and we grant a COA for these claims.

For the reasons below, we deny the claims on their merits.

3. Claims 5 and 6: We deny Clark’s claims that

trial counsel had conflicts of interest that

adversely affected Clark’s representation.

Clark argues that trial counsel had a conflict of interest

based on: (1) Public Defender Susan Massini representing

Clark while she was running for District Attorney; and

(2) Public Defender Ronald Brown or his office previously

represented a large number of prosecution and potential

defense witnesses. Clark argues, in particular, that these

conflicts deprived him of effective assistance of counsel

because there were several plausible alternative defense

strategies that were foreclosed due to the alleged conflicts of

interest.

On direct appeal, the California Supreme Court rejected

Clark’s conflict of interest arguments in a reasoned opinion.

Clark, 857 P.2d at 1130–31. Quoting Cuyler v. Sullivan,

446 U.S. 335, 348 (1980), the court determined that because

Clark did not raise any objection to Massini’s representation,

Clark must “demonstrate that an actual conflict of interest

adversely affected his lawyer’s performance.” Clark,

857 P.2d at 1126. First, the state court found no actual

conflict: “we do not find that Massini’s personal interest in

winning the election for district attorney threatened her

loyalty to defendant.” Id. at 1127. Second, the state court

found Massini’s alleged conflict did not adversely affect her

argument is unavailing. Clark does not otherwise discuss or appeal

Claim 22. Accordingly, we reject Clark’s attempt to incorporate Claim

22 into Issue 3.

CLARK V. CHAPPELL 69

representation of Clark because Allen was co-counsel during

Massini’s campaign, Allen did not have a conflict, and Allen

was not an employee of Massini. Id. at 1128. The state court

also rejected Clark’s argument that there was an adverse

effect based on Massini’s failure to adequately advocate for

the suppression of evidence pre-trial. Id. The state court

further found that the trial court did not commit error in

violation of Wood v. Georgia, 450 U.S. 261 (1981), which

requires the trial court to inquire about the alleged conflict

and to obtain a knowing and intelligent waiver from the

defendant. Clark, 857 P.2d at 1129.

Addressing Clark’s allegations that Brown had a conflict

of interest, the California Supreme Court concluded that

there was no actual or potential conflict in the Public

Defender’s Office’s representation of witnesses Smith,

Boyd, and Dino, and no adverse effect on Clark’s

representation. Id. at 1130. Brown represented to the court

that he possessed no confidential information relating to any

of these three witnesses. Id. at 1131. Brown and Allen each

attested that the cross-examination of these witnesses would

not be affected by the Public Defender’s Office’s prior

representations of these witnesses. Id. The court found that

Brown had no interest in shielding these witnesses from

impeachment. Id.

The California Supreme Court did, however, find

Brown’s representation of Williams “more troubling”

because Brown personally represented Williams and

possessed confidential information from their attorney-client

relationship. Id. at 1131. Brown represented Williams on

charges of receiving stolen property in February 1986—

before Brown became the Public Defender and co-counsel

on Clark’s case. Id. The court found that there was an actual

conflict but it did not adversely affect the representation of

70 CLARK V. CHAPPELL

Clark because (1) Brown terminated representation of

Williams; (2) Brown and Allen each made sworn

representations to the court that Brown did not disclose to

Allen any confidential information from Brown’s

representation of Williams; and (3) only co-counsel Allen

conducted the cross-examination of Williams. Id.

The district court, agreeing with the California Supreme

Court, found that Clark failed to show actual conflict

because he could not establish that Massini’s political

agenda adversely affected her performance. The district

court also found that Clark waived his conflict claims against

Brown, and even if the claims were valid, he failed to make

a colorable claim that the alleged conflicts adversely affected

counsel’s performance.

Ordinarily, a petitioner claiming ineffective assistance of

counsel must show under Strickland both deficient

performance and prejudice. See supra Part IV(B)(1) and

(B)(3)(b). But the Supreme Court in Mickens prescribes “an

exception to this general rule” where prejudice is presumed,

when there is an “actual conflict of interest.” Mickens,

535 U.S. at 166, 171. The Court defined “an actual conflict

of interest” to mean “precisely a conflict that affected

counsel’s performance—as opposed to a mere theoretical

division of loyalties[,]” which is a two-step inquiry that a

defendant must show a conflict of interest and that the

conflict actually affected counsel’s performance. Id. at 171.

a. Massini: No Actual Conflict

Clark argues that Massini’s election to District Attorney

created a conflict of interest that deprived him of effective

assistance of counsel. Future employment plans do not alone

CLARK V. CHAPPELL 71

create an “actual conflict.” 11 Garcia, 33 F.3d at 1198–99

(future job with the prosecutor’s office); see also Maiden v.

Bunnell, 35 F.3d 477, 480–81 (9th Cir. 1994) (finding that

crossing the line from prosecution to defense does not

necessarily create a conflict of interest); United States v.

Unruh, 855 F.2d 1363, 1379 (9th Cir. 1987) (holding that

defense counsel’s application for employment as an

Assistant United States Attorney did not constitute an actual

conflict).

Thus, Massini’s future employment as the District

Attorney did not by itself create an actual conflict. Clark has

not specified how Massini’s political agenda adversely

affected her representation of Clark. Rather, he offers only

general criticisms: Massini did “not interview a single

witness”; she “hid her conflict from Mr. Clark;” and “closely

controlled the case to protect her electoral position.” The

record, however, does not support Clark’s assertions.

Massini, recognizing her own inexperience on capital

defense, requested that Allen, an experienced capital defense

attorney, join the case. Allen, who was not associated with

the Public Defender’s Office, joined as co-counsel, almost

five months before voir dire began. Allen attested to the

state court that he did not have any conflicts with witnesses.

See Burger v. Kemp, 483 U.S. 776, 784 (1987) (“[W]e

generally presume that the lawyer is fully conscious of the

overarching duty of complete loyalty to his or her client.”).

Allen zealously advocated for Clark with an extensive

defense throughout trial and a substantial presentation of

mitigating evidence at the penalty phase. Nothing in the

record suggests that Massini allowed her possible election to

11

Once Massini became the District Attorney, her office was

recused in this case and replaced by the Attorney General, so Clark’s

claim is necessarily premised on Massini’s future employment.

72 CLARK V. CHAPPELL

affect her representation of Clark. We therefore find that

Clark fails to establish that Massini running for District

Attorney was more than “a mere theoretical division of

loyalties.” Mickens, 535 U.S. at 171.

b. Brown: No Adverse Effect

Clark argues that Brown’s representation of witnesses

created a conflict of interest that foreclosed Brown’s ability

to present sufficient evidence to support plausible,

alternative defense theories. In particular, Clark contends

that Brown could not (a) rebut the jailhouse report;

(b) establish that heavy drug use caused Clark to suffer a

rage reaction and/or to blackout; and (c) assert a “third party

defense” that Dino was also involved in the murder.

Conflicts of interest can arise from concurrent

representation of clients in separate matters. See Mickens,

535 U.S. at 175. But Clark must show that Brown “actively

represented conflicting interests,” Earp, 431 F.3d at 1182–

83 (emphasis added) (quoting Mickens, 535 U.S. at 166), and

that Brown “was influenced in his basic strategic decisions

by the [conflicted] interests.” Mickens, 535 U.S. at 170

(quoting Wood, 450 U.S. at 272).

First, Clark’s argument concerning the jailhouse report

is not persuasive. 12 The evidence that Clark relies on—

declarations by two inmates and a corrections officer opining

favorably on Clark’s character—fails to establish an actual

conflict that affected counsel’s performance. Although

Inmate Brackett’s 1998 declaration states that Brown

12

See also infra Part IV(C)(7) addressing Clark’s argument that his

trial counsel provided ineffective assistance of counsel for failing to

rebut the jailhouse report (Claim 14L).

CLARK V. CHAPPELL 73

represented him in 1985, the record is silent on any further

supporting evidence and Clark does not demonstrate an

actual conflict. Furthermore, although Investigator

McPherson’s 2005 declaration states that he “could not

interview the inmates who reported this because they were

Public Defender clients,” he does not specify that Brown

directly represented the inmates during Clark’s trial. The

record does not support an actual conflict of Brown with the

inmates named in the report—Barella, Hull, Brackett, and

Strobridge. Clark fails to establish an actual conflict, let

alone that Brown’s role as the public defender affected his

representation of Clark.

Second, we also reject Clark’s argument that Brown’s

and the Public Defender’s Office’s prior representation of

the prosecution witnesses prevented the defense from

impeaching the prosecution witnesses or calling potential

defense witnesses. The defense’s case revolved around the

theory that Clark’s heavy drug use caused him to suffer a

“rage reaction,” thus negating the requisite mens rea. Clark

claims that the testimony of certain prosecution witnesses—

Williams, Smith, Dino, and Boyd—minimized the defense’s

theory of heavy drug use, thus adversely affected Clark’s

representation.

Although Brown’s personal representation of Williams

created a conflict, as Brown concurrently represented

Williams and Clark, nothing in the record indicates that the

conflict adversely affected Clark’s representation. Rather,

Brown took steps to eliminate any adverse effect: Brown

terminated representation of Williams; Brown and Allen

each attested that Brown did not disclose to Allen any

confidential information from Brown’s representation of

Williams; and only co-counsel Allen conducted the cross-

examination of Williams. The record does not indicate that

74 CLARK V. CHAPPELL

Brown was influenced in his basic strategic decisions by his

representation of Williams.

The Public Defender’s Office represented witnesses

Smith, Dino, and Boyd, but Brown did not personally

represent them. Clark argues that these witnesses’ extensive

involvement with the criminal justice system with their own

convictions and charges prevented the defense team from

impeaching them and that these witnesses minimized or

denied Clark’s drug use and its effects. These arguments are

meritless in the context of the entire defense case that

extensively stressed Clark’s heavy drug use. Furthermore,

Brown represented to the court that he possessed no

confidential information relating to any of these three

witnesses, and both Brown and Allen each represented to the

court that the cross-examination of these witnesses would

not be affected by the Public Defender’s Office’s prior

representations of these witnesses. See Holloway v.

Arkansas, 435 U.S. 475, 485 (1978) (“An ‘attorney

representing two defendants in a criminal matter is in the

best position professionally and ethically to determine when

a conflict of interest exists or will probably develop in the

course of a trial.’” (quoting State v. Davis, 514 P.2d 1025,

1027 (Ariz. 1973)); see also Alberni v. McDaniel, 458 F.3d

860, 870 (9th Cir. 2006). Clark has failed to establish that

any alleged conflict with witnesses adversely affected

Clark’s representation.

Third, Clark’s assertion that Dino Stevens’s pending

charges created “multiple, interlocking conflicts” is not

persuasive. Brown did not personally represent Dino;

Brown represented to the court that he possessed no

confidential information relating to Dino; and both Brown

and Allen each represented to the court that the cross-

examination of Dino would not be affected by the Public

CLARK V. CHAPPELL 75

Defender’s Office’s prior representations of Dino. Clark

fails to articulate more than “a mere theoretical division of

loyalties.” Mickens, 535 U.S. at 171.

We conclude that Clark has not established any actual

conflict of interest that adversely affected trial counsel’s

representation of Clark, and thus we deny habeas relief on

Claims 5 and 6.

4. Claim 8: We deny a COA on Clark’s claim that

trial counsel was ineffective for failing to

challenge the methamphetamine drug level

testimony.

Clark argues that trial counsel rendered ineffective

assistance of counsel by failing to challenge the

methamphetamine drug level testimony offered at trial. In

particular, Clark asserts that trial counsel did not consult

with an independent forensic toxicologist about the effect of

the drug levels on Clark nor investigate the collection,

storage, transportation, and analysis of the blood sample.

However, the jointly-hired forensic toxicologist testified

to the low level of drugs in Clark’s blood and another

defense expert testified that any debilitating effect could not

be determined due to the low levels. We conclude that Clark

has not demonstrated that this claim raises “questions [that]

are adequate to deserve encouragement to proceed further.”

Lambright, 220 F.3d at 1025 (quoting Barefoot, 463 U.S.

at 893 n.4). Because Clark cannot make “a substantial

showing of the denial of a constitutional right,” 28 U.S.C.

§ 2253(c)(2), we therefore deny Clark’s request for a COA

on Claim 8 and do not address the merits of this claim.

76 CLARK V. CHAPPELL

5. Claim 11: We deny Clark’s claim that trial

counsel was ineffective for failing to present life

history evidence at the penalty phase.

Clark argues that his trial counsel provided ineffective

assistance at the penalty phase by failing to investigate,

prepare, and present more evidence about Clark’s life

history. 13 Specifically, Clark contends that his trial counsel

failed to present additional mitigating evidence regarding:

(1) Clark’s genetic predisposition for depression and

substance abuse; (2) Clark’s father’s violence toward

Clark’s mother, Clark, and his siblings; (3) Clark’s mother’s

drinking problem, abandonment, and physical abuse of her

children; (4) Clark’s longstanding learning disability;

(5) Clark’s longstanding mental health issues; and (6) the

nature and extent of Clark’s drug use. In support of these

arguments, Clark relies on post-conviction declarations of

psychologist Dr. Sanislow, defense mental health experts

Drs. Roberts and Raffle, and other experts, to give a more

detailed account of Clark’s life history than provided during

trial. Clark argues that this additional information would

have “paint[ed] a much more sympathetic picture.”

To assess Clark’s claim, we must take into account the

substantial life history evidence Clark’s counsel did present

at the penalty phase. Clark’s trial counsel presented to the

jury extensive testimony that Clark’s mother developed a

drinking problem and abandoned her children, leaving the

home in extreme disrepair and Clark to care for his younger

siblings until Clark was ultimately placed in foster care. See

Clark, 857 P.2d at 1145–46. Counsel presented evidence

13

See supra Part IV(B)(5) for the portion of Claim 11 (Issue 5) that

addresses Clark’s argument that trial counsel was ineffective for failing

to investigate Clark’s traumatic birth and its effects.

CLARK V. CHAPPELL 77

that Clark’s mother beat her children with Hot Wheels tracks

and other items. Also, counsel proffered evidence about

Clark’s longstanding learning disability with reading,

including testimony from one of his special education

teachers. See id.

In addition, counsel investigated and presented evidence

during both the guilt and penalty phases about Clark’s

longstanding mental health issues. See id. at 1145. Clark’s

family members and a county counselor who had treated

Clark’s family testified that Clark was severely and

chronically depressed and withdrawn following the death of

his father when Clark was twelve years old.

Counsel also presented testimony about Clark’s drug use

at both the guilt and penalty phases. Clark began

experimenting with drugs and alcohol around the age of

twelve following the death of his father and started regularly

using harder drugs like methamphetamine within the year

before the murder. Counsel showed the jury that blood tests

supported that Clark had a “high therapeutic” or “low abuse”

amount of methamphetamine at the time of the murder. Id.

at 1114.

Clark’s counsel, though, did not present all of Clark’s

life history evidence. As the state acknowledges, the defense

did not present evidence that Clark was genetically

predisposed to mental illness and substance abuse based on

his family background. Additionally, it appears that the

defense did not present to the jury that as part of his

depression, Clark was self-destructive (e.g., electrocuting

himself by putting his hand in the toaster). Clark concedes

on appeal, though, that counsel proffered evidence to the

jury that Clark attempted suicide a few months before

Grover’s murder. Clark contends that the evidence

presented at trial relating to his drug use failed to capture the

78 CLARK V. CHAPPELL

“degree” of his escalating methamphetamine addiction and

“its effect on his functioning” leading up to and at the time

of Grover’s murder.

Also, Clark’s father’s violence towards his children was

not presented at trial. The jury heard that Clark’s father was

an alcoholic, that he beat Clark’s mother, and that she got a

restraining order against him. Clark’s mother testified at the

penalty phase that Clark’s father was “[v]erbally” abusive

with his children “when he was drinking.” But the jury did

not hear that Clark’s father also physically abused his

children. For example, the jury was not informed that

Clark’s drunken father first struck Clark at eight months old,

or that he frequently beat Clark and his brother. Further,

although counsel generally proffered evidence that Clark’s

father “physically abused” or “beat” Clark’s mother, counsel

did not present the details, including that he raped her, which

prompted her to finally leave him when Clark was about ten

years old.

However, most of the additional mitigating evidence that

Clark argues should have been presented is cumulative of the

evidence presented during the guilt and penalty phases.

Although additional evidence of Clark’s early childhood and

Clark’s father’s violence could have been presented, Allen

proffered extensive evidence to illustrate that Clark suffered

a traumatic, abusive childhood and experienced its effects on

his development, mental health, and substance use. See also

supra Part IV(B)(5). The record supports our finding that

Allen’s presentation of Clark’s life history evidence during

the guilty and penalty phases was adequate under 1987

standards and not objectively unreasonable. See Hamilton,

583 F.3d at 1129 (“As the Supreme Court has long

recognized, the ABA Standards for Criminal Justice provide

guidance as to what constitutes a ‘reasonable’ performance.”

CLARK V. CHAPPELL 79

(quoting Strickland, 466 U.S. at 688–89)). Clark’s

objections that Allen should have presented more life history

evidence are more akin to “[m]ere criticism of a tactic or

strategy.” Gustave, 627 F.2d at 904.

We, therefore, conclude that Clark has not shown that

trial counsel’s presentation of life history evidence was

deficient. 14 We deny habeas relief on Claim 11.

6. Claim 14F: We deny a COA on Clark’s claim

that trial counsel was ineffective for failing to

challenge pathologist and criminalist testimony.

Clark argues that trial counsel provided ineffective

assistance of counsel by failing to challenge the state’s

pathologist and criminalist testimony. The state’s

pathologist testified that, after Clark choked Grover, she was

alive and breathing at the time of the stabbing and of the

blunt force blows to her head and neck. Clark argues that

this conclusion was incorrect because there was no evidence

of aspirated blood. Clark also argues that the pathologist’s

testimony and the prosecution’s closing argument

incorrectly implied sodomy of the victim. In essence, Clark

argues that the sequence of events leading to Grover’s death

was misrepresented at trial and that she was unconscious or

already dead prior to the administration of blunt force.

Clark, however, does not dispute that he choked Grover,

stabbed her with a screwdriver, and threw concrete blocks

on her head. Because Clark fails to show that the relevance

of when Grover died is “debatable among jurists of reason,”

Lambright, 220 F.3d at 1025 (quoting Barefoot, 463 U.S.

14

However, even if we determined that Clark could show

deficiency, Clark has not shown prejudice.

80 CLARK V. CHAPPELL

at 893 n.4), he cannot make “a substantial showing of the

denial of a constitutional right,” 28 U.S.C. § 2253(c)(2). We

deny Clark’s request for a COA on Claim 14F, and do not

address the merits of this claim.

7. Claim 14L: We deny Clark’s claim that trial

counsel was ineffective for failing to rebut the

jailhouse report.

Clark argues that trial counsel provided ineffective

assistance for failing to rebut the jailhouse report that

indicated that Clark had a “cocky attitude” by presenting

evidence during the penalty phase of Clark’s remorse and

positive adjustment to prison.

Clark’s argument that any reasonable counsel, given the

powerful mitigation of remorse and positive adjustment to

prison, would have rebutted the jailhouse report is

unconvincing. In support of his arguments, Clark relies on

post-conviction declarations from two of the inmates named

in the jailhouse report that indicated statements in the report

were false, and from a corrections officer who “spoke with

other officers who knew [Clark] and his reputation in the jail

[as] one of being peaceful, obedient, and non-violent.”

Counsel, however, presented extensive mitigating

evidence at the penalty phase, including 23 witnesses who

testified to Clark’s character. See supra Parts IV(B)(5) and

IV(C)(5). To insist that counsel should have presented

additional evidence that Clark was “remorseful,” amounts to

“[m]ere criticism of a tactic or strategy [that] is not in itself

sufficient to support a charge of inadequate representation.”

Gustave, 627 F.2d at 904. Allen proffered extensive

mitigating evidence on Clark’s behavior as a protective older

brother to his younger sister, a caregiver to his paraplegic

friend, a considerate person who would break up fights as a

CLARK V. CHAPPELL 81

teenager, a reliable worker with a good attitude in his jobs,

and a non-rowdy, good person as a tenant. The post-

conviction evidence that Clark argues should have been

presented did not exist at the time of the trial. At most, the

evidence developed post-conviction suggests that Allen

could have taken a different tactic during the penalty phase

but does not suggest that Allen’s presentation of mitigating

evidence on Clark’s behavior was objectively unreasonable.

We conclude that Allen’s performance was not deficient, 15

and we therefore deny habeas relief on Claim 14L.

8. Claim 15B: We deny a COA on Clark’s claim

that habeas relief is warranted under Batson v.

Kentucky because the prosecutor discriminatorily

used its peremptory challenges.

Clark argues that he was denied his rights to equal

protection and due process by the prosecution’s

discriminatory use of peremptory challenges to exclude

prospective jurors based on their race. See Batson v.

Kentucky, 476 U.S. 79 (1986). Specifically, Clark argues

that the prosecutor exercised five preemptory challenges to

remove all but one of the Latino prospective jurors.

However, defense counsel conceded during trial that the

prosecutor offered race-neutral reasons that met the

prosecution’s Batson burden. Clark therefore fails to

establish that this claim is “debatable among jurists of

reason,” Lambright, 220 F.3d at 1025 (quoting Barefoot,

463 U.S. at 893 n.4), and thus does not make “a substantial

showing of the denial of a constitutional right,” 28 U.S.C.

15

However, even if we determined that Clark could show

deficiency, Clark has not shown prejudice.

82 CLARK V. CHAPPELL

§ 2253(c)(2). We deny Clark’s request for a COA on Claim

15B and do not address the merits of this claim.

9. Claim 18: We deny Clark’s claim that he was

denied his constitutional right to be present for

critical stages of the proceedings.

Clark argues that he was denied his Sixth Amendment

right to be present at two meetings regarding possible

conflicts of interest with counsel: (a) an “off-the-record”

meeting on February 7, 1986, between the state court and

counsel to discuss Massini’s candidacy for District Attorney;

and (b) an “in-chambers conversation” regarding the

admissibility at trial of Dr. Mayland’s testimony from the

pre-trial suppression hearing.

The right to a public trial under the Sixth Amendment,

“taken together with the right to due process, includes a right

of . . . defendant[] and [his] counsel to be present at all stages

of the trial from arraignment to verdict and discharge of the

jury.” Polizzi v. United States, 550 F.2d 1133, 1137 (9th Cir.

1976) (concluding that a defendant’s presence was not

required during the judge’s questioning of the jurors after the

verdict). This right, however, “is not absolute.” Id. The

defendant “has a due process right ‘to be present in his own

person whenever his presence has a relation, reasonably

substantial, to the fulness of his opportunity to defend

against the charge.’” Kentucky v. Stincer, 482 U.S. 730, 745

(1987) (quoting Snyder v. Massachusetts, 291 U.S. 97, 105–

06 (1934), overruled in part by Malloy v. Hogan, 378 U.S. 1

(1964)). However, it is not a guaranteed right “when

presence would be useless, or the benefit but a shadow,” id.

at 745 (quoting Snyder, 291 U.S. at 106–07), or when the

defendant “could have done nothing had [he] been at the

conference, nor would [he] have gained anything by

attending,” United States v. Gagnon, 470 U.S. 522, 527

CLARK V. CHAPPELL 83

(1985) (per curiam) (concluding that a defendant’s presence

was not required at an in camera discussion between the

judge and a juror). “Thus, a defendant is guaranteed the right

to be present at any stage of the criminal proceeding that is

critical to its outcome if his presence would contribute to the

fairness of the procedure.” Stincer, 482 U.S. at 745. The

“exclusion of a defendant from a trial proceeding should be

considered in light of the whole record.” Gagnon, 470 U.S.

at 526–27.

We reject Clark’s argument that, if he were present at the

meeting about Massini’s conflict, he would have insisted on

a full hearing and removal of counsel. The discussions at

this meeting were later described by defense counsel in open

court for the trial judge in Clark’s presence, and Clark made

no objections or requests for a further hearing. Moreover,

when the conflicts were explained to Clark, he stated on the

record that he wanted Brown and Allen to continue to

represent him. Clark therefore has not shown that he would

“have gained anything by attending.” Gagnon, 470 U.S.

at 527.

We also are unpersuaded by Clark’s argument that his

constitutional right was infringed by being excluded from

the in-chambers conference regarding the admissibility of

Dr. Mayland’s pre-trial testimony. Clark asserts that this

meeting constituted a critical stage because “it was there that

counsel believed he had extracted a promise the statements

could not be used,” and Clark had expressly stated that he

did not wish for these statements to come before the jury.

But defense counsel believed that the judge ruled favorably

for the defense at the in-chambers conference by excluding

Dr. Mayland’s testimony at trial. See supra Part IV(B)(3).

Moreover, on direct appeal, the California Supreme Court

found that the in-chambers conference concerned “the length

84 CLARK V. CHAPPELL

of time for a hearing and the possible defense witnesses to

be called,” which did “not implicate defendant’s opportunity

to defend himself.” Clark, 857 P.2d at 1138. Clark has not

explained how he could have done anything differently or

what he would have gained had he been at the in-chambers

conference. Cf. Gagnon, 470 U.S. at 526–27. We thus find

that Clark has not demonstrated that his constitutional right

to be present was infringed.

We conclude that Clark has not explained how his

presence at these two meetings had a reasonably “substantial

relationship” to his ability to defend himself, Stincer,

482 U.S. at 746, and we deny habeas relief on Claim 18.

10. Claim 20: We deny Clark’s claim that habeas

relief is warranted under Brady v. Maryland

because the state failed to disclose the Manda

Report and the prosecutor’s interview notes.

Clark argues that the prosecution failed to disclose two

pieces of exculpatory evidence: (a) the Manda Report and

(b) the prosecutor’s interview notes from a conversation with

the officers regarding Clark’s confession in the patrol car.

a. The Manda Report

Under Brady, “suppression by the prosecution of

evidence favorable to an accused . . . violates due process

where the evidence is material either to guilt or to

punishment.” 373 U.S. at 87; see supra Part IV(B)(6)(b).

The petitioner must show that “there is a reasonable

probability that, had the evidence been disclosed to the

defense, the result of the proceeding would have been

different.” Reis-Campos, 832 F.3d at 975 (quoting Bagley,

473 U.S. at 682).

CLARK V. CHAPPELL 85

Clark argues that he was prejudiced by the prosecution’s

failure to disclose the coroner’s report prepared by Deputy

Manda (Manda Report) because it would have contradicted

the officers’ testimony. At the preliminary hearing,

suppression hearing, and trial, Detectives Kelley and Gall

testified that they learned of Grover’s several stab wounds to

her back after Clark’s patrol car confession. Clark argues

that Detective Gall’s testimony that he went to the mortuary

and learned of the stab wounds at approximately 2:00 p.m.

would have been contradicted by the Manda Report, which

indicates that Detective Gall viewed the stab wounds at the

mortuary prior to 11:00 a.m., which occurred before Clark’s

patrol car confession. Clark argues that he knew of the stab

wounds only because the officers had told him, which would

have supported his drug-induced blackout and rage reaction

theories and would have refuted the prosecution’s

characterization during the penalty phase that Clark was a

sociopathic liar.

Even if the Manda Report supported the possibility that

the officers could have told Clark that Grover had been

stabbed in the back, there is nothing in the Manda Report

suggesting that the officers knew that the weapon was a

screwdriver. The screwdriver, which bore traces of human

blood, was not found in David Smith’s car until

approximately a week after the murder. Therefore, Clark’s

statement in the patrol car that he had stabbed Grover several

times with “what appeared to be a screwdriver, just the metal

shaft part” had to be based on his personal knowledge, and

could not have come from the officers.

86 CLARK V. CHAPPELL

In addition, testimony by Michelle Stevens undermines

Clark’s claim. 16 Michelle testified that when Clark returned

to the house early in the morning after the murder, Clark told

her that he had found the body of a teenage girl. Michelle

testified that Clark told her the girl’s head was swollen and

it looked like she had been raped and “stabbed by something

like a screwdriver.” Clark’s conversation with Michelle

occurred before Clark’s meeting with Detectives Kelley and

Gall. Clark argues that Michelle’s testimony is unreliable

and that she did not mention the screwdriver when

interviewed by officers that morning. But Michelle’s

testimony nonetheless suggests that Clark had personal

knowledge that Grover was stabbed with a screwdriver.

Thus, the Manda Report would not have undermined the

prosecution’s argument that Clark had personal knowledge

that Grover had been stabbed and that Clark did not learn

this information from the officers.

We therefore conclude that there is not a “reasonable

probability that . . . the result of the proceeding would have

been different” if the Manda Report had been disclosed to

the defense. Reis-Campos, 832 F.3d at 975 (quoting Bagley,

473 U.S. at 682).

b. Prosecutor’s Interview Notes

Clark also argues that the prosecution withheld interview

notes by Deputy District Attorney Robert Hickok that

contradicted the testimony of Detectives Kelley and Gall that

Clark was calm during his patrol car confession. The notes

indicate that the officers told Hickok that the reason for

Detective Gall’s response to Clark’s 30-years question was

16

Michelle was unavailable to testify at trial, so the parties agreed

that her preliminary hearing testimony would be read to the jury.

CLARK V. CHAPPELL 87

“we were attempting to consol [sic] [Clark] at that time,

cooling out the situation so that he wouldn’t ‘freak out’ at

the hospital.” Clark argues that the notes support that Clark

was in distress at the time of his patrol car confession and

that Detective Gall’s 30-years statement was a promise to

Clark of leniency. Clark asserts that the disclosure of the

notes would have led to the suppression of his patrol car

confession, and without the patrol car confession, the

prosecution would not have been able to use it to undermine

his taped statement that he had blacked out during the

murder. We disagree.

Clark fails to show a reasonable probability that the

result of trial would have been different. His taped

confession would still be admissible, in which he admitted

to choking Grover, “bashing one rock into her,” and

“throwing a piece of metal” that “looked like an old broken

screwdriver” after she “said she was going to cry rape.” He

also admitted that after the murder he changed his clothes

and pretended to find the body as a cover up. Given the

overwhelming evidence against Clark, the prosecutor’s

notes would not have changed the jury’s rejection of Clark’s

claim that he had blacked out during the murder. We

therefore conclude that Clark has not shown, even if the

prosecutor’s notes were disclosed to the defense, that there

is “a probability sufficient to undermine confidence in the

outcome.” Reis-Campos, 832 F.3d at 975 (quoting Bagley,

473 U.S. at 682).

We thus deny habeas relief on Claim 20.

88 CLARK V. CHAPPELL

11. Claim 36: We deny Clark’s claim that habeas

relief is warranted because cumulative errors

denied Clark’s right to a fair trial.

Finally, Clark argues that his habeas claims must be

analyzed for cumulative error. “Although individual errors

looked at separately may not rise to the level of reversible

error, their cumulative effect may nevertheless be so

prejudicial as to require reversal.” United States v.

Necoechea, 986 F.2d 1273, 1282 (9th Cir. 1993). “In

reviewing for cumulative error, the court must review all

errors preserved for appeal and all plain errors.” Id. “[T]he

combined effect of multiple trial court errors violates due

process where it renders the resulting criminal trial

fundamentally unfair.” Parle v. Runnels, 505 F.3d 922, 927

(9th Cir. 2007); see also Chambers v. Mississippi, 410 U.S.

284, 302 (1973). Cumulative error warrants habeas relief

where the errors “so infected the trial with unfairness,”

Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974), as to

have a “substantial and injurious effect or influence in

determining the jury’s verdict,” Brecht v. Abrahamson,

507 U.S. 619, 637 (1993) (citation omitted).

In analyzing all of Clark’s claims on appeal, we conclude

that cumulative error does not warrant reversal. Given the

overwhelming evidence against Clark at trial, any error that

may have occurred did not infect the trial with unfairness.

We deny habeas relief on Claim 36.

V. CONCLUSION

We AFFIRM the district court’s denial of habeas corpus

relief on Issues 1, 3, 4, 5, and 6. We VACATE the district

court’s denial of habeas corpus relief on Issue 2, and we

REMAND to the district court for the limited purpose to

CLARK V. CHAPPELL 89

reconsider Issue 2 in light of our decision in Godoy v.

Spearman, 861 F.3d 956 (9th Cir. 2017) (en banc).

We extend a COA to Claims 5, 6, 11, 14L, 18, 20 and 36,

and we DENY habeas corpus relief on these claims. We

DENY a COA on Claims 8, 14F, and 15B.