# Richard Clark v. Kevin Chappell

> Court of Appeals for the Ninth Circuit · September 5, 2019 · 936 F.3d 944

URL: https://www.frixlaw.com/law-library/cases/4436070

## Case

- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** September 5, 2019
- **Citations:** 936 F.3d 944
- **Precedential status:** Published
- **Opinion:** Opinion
- **Nature of suit:** Prisoner Death Penalty
- **Cited by:** 36 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4436070

## How later opinions describe it (automated extraction)

- finding that defendant’s exclusion from in- - 33 - Case 4:03-cv-00290-DCB Document 304 Filed 11/09/21 Page 34 of 63 1 chambers conference regarding admissibility of psychiatrist’s pre-trial testimony did not 2 violate his constitutional right to be present where defendant “has…
- concluding that the petitioner was not preju- diced by one attorney’s advice to reject a plea deal because another of his attorneys advised him to accept it
- recognizing that 7 the Godoy test constitutes a “new legal principle” or “new standard” distinct from this court’s 8 prior analysis under Brecht
- recognizing that California has imposed “procedural bars” based on timeliness and failure to raise claims on direct appeal

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4436070. Public record. Not legal advice.