Curtis Fauber v. Ronald Davis

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CURTIS LYNN FAUBER, No. 17-99001

Petitioner-Appellant,

D.C. No.

v. 2:95-cv-06601-

GW

RONALD DAVIS, Warden, California

State Prison at San Quentin, OPINION

Respondent-Appellee.

Appeal from the United States District Court

for the Central District of California

George H. Wu, District Judge, Presiding

Argued and Submitted January 24, 2022

Pasadena, California

Filed August 5, 2022

Before: Paul J. Watford, Daniel A. Bress, and

Danielle J. Forrest, Circuit Judges.

Opinion by Judge Bress;

Dissent by Judge Watford

2 FAUBER V. DAVIS

SUMMARY *

Habeas Corpus/Death Penalty

The panel affirmed the district court’s judgment denying

Curtis Fauber’s habeas corpus petition challenging his

murder conviction and death sentence.

The district court certified four claims for appeal.

Claims 10(a) and (c) and Claim 41(a)(1)(16) all

concerned the prosecutor’s alleged improper vouching for

the credibility of witness Brian Buckley by reading to the

jury the plea agreement in which Buckley agreed to testify

against Fauber. In Claim 41(a)(1)(16), Fauber argued that

trial counsel was ineffective for failing to object to the

alleged vouching. The panel held that under Antiterrorism

and Effective Death Penalty Act (AEDPA), the California

Supreme Court’s decision rejecting Fauber’s ineffective

assistance claim was not contrary to or an unreasonable

application of clearly established law; the California

Supreme Court could reasonably conclude that even if

counsel acted deficiently, there was no prejudice. In Claims

10(a) and (c), Fauber argued that the alleged vouching, and

the state court’s allowance of the same, violated Fauber’s

due process rights. The panel held that Fauber procedurally

defaulted his due process vouching claims, and that even if

the due process claims were not procedurally defaulted, they

would fail on the merits because the alleged vouching was

harmless.

*

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

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

FAUBER V. DAVIS 3

In Claim 28(c), Fauber argued that the state trial court

improperly excluded his unaccepted plea offer as mitigating

evidence at the penalty phase. The panel held that no clearly

established federal constitutional law holds that an

unaccepted plea offer qualifies as evidence in mitigation that

must be admitted in a capital penalty proceeding. The panel

held that regardless, Fauber cannot show prejudice. The

panel wrote that given the extreme aggravating factors that

the State put forward coupled with Fauber’s already

extensive but unsuccessful presentation of mitigating

evidence, there is no basis to conclude that the jury would

have reached a different result if it had considered Fauber’s

unaccepted plea.

The panel denied Fauber’s request to expand the

certificate of appealability to include four additional claims.

Dissenting in part, Judge Watford would grant Fauber’s

habeas petition as to the exclusion of the plea offer at the

penalty phase. Noting that the prosecutor argued that Fauber

must be executed because he was likely to kill again if

sentenced to life in prison, Judge Watford wrote that the trial

court’s exclusion of the prior offer of a plea deal with a life

sentence prevented Fauber from rebutting this claim, thereby

violating clearly established federal law, an error that was

not harmless.

4 FAUBER V. DAVIS

COUNSEL

John S. Crouchley (argued) and Ajay V. Kusnoor, Deputy

Federal Public Defenders; Cuauhtemoc Ortega, Federal

Public Defender; Office of the Federal Public Defender, Los

Angeles, California; for Petitioner-Appellant.

Jonathan Matthew Krauss (argued), A. Scott Hayward, and

Xiomara Costello, Deputy Attorneys General; James

William Bilderback II and Dana M. Ali, Supervising Deputy

Attorneys General; Lance W. Winters, Senior Assistant

Attorney General; Gerald A. Engler, Chief Assistant

Attorney General; Rob Bonta, Attorney General; Office of

the Attorney General, Los Angeles, California; for

Respondent-Appellee.

FAUBER V. DAVIS 5

OPINION

BRESS, Circuit Judge:

In 1988, a California jury sentenced Curtis Fauber to

death for murdering Thomas Urell with an ax. The

California Supreme Court affirmed Fauber’s conviction and

sentence on direct appeal and later denied his state habeas

petition. Fauber now seeks federal habeas relief. He argues

that the state prosecutor improperly vouched for a witness’s

credibility, that his attorney was ineffective in not objecting

to the vouching, and that the state trial court, in the penalty

phase, improperly excluded the prosecution’s earlier plea

offer to Fauber as claimed mitigating evidence.

We hold that Fauber’s claims lack merit. The state

court’s decisions are not contrary to or an unreasonable

application of clearly established federal law, 28 U.S.C.

§ 2254(d)(1), and one of Fauber’s claims is procedurally

defaulted. We affirm the judgment of the district court.

I

A

More than thirty years ago, Curtis Fauber and his friend

Brian Buckley broke into Thomas Urell’s home to steal

drugs. When Urell woke up and discovered the intruders,

Fauber bludgeoned Urell to death with the blunt side of an

ax. Extensive evidence connected Fauber to the crime,

including Buckley’s testimony (which was corroborated in

key parts by unindicted confederate Mel Rowan), Urell’s

autopsy, various pieces of physical evidence, and Fauber’s

own admissions. We now summarize the facts based on the

record before us and the California Supreme Court’s

6 FAUBER V. DAVIS

decision on Fauber’s direct appeal. See People v. Fauber,

831 P.2d 249 (Cal. 1992).

Fauber and Buckley met in the Army in January 1985.

They became close friends, with Fauber visiting Buckley’s

family during breaks in service. In June 1985, the Army

discharged Fauber and Buckley, and the two went to

Buckley’s mother’s apartment in Ventura. After spending

time in his home state of New Mexico, Fauber later returned

to Ventura in the early summer of 1986 to stay with Buckley.

That summer, Fauber and Buckley regularly used drugs

with Buckley’s neighbors, Jan Jarvis and Mel Rowan. At

one point, Jarvis mentioned that she had a former boyfriend

named Thomas Urell who sold cocaine. Fauber was

intrigued by the possibility of robbing Urell and asked where

he lived. Jarvis drew a map showing the location and layout

of Urell’s house. The group talked about robbing the home

and a week later, all four of them drove by Urell’s house to

scout it. Rowan told Fauber to “rip off” Urell immediately,

but Fauber said: “No, we want to check it out for a few days.”

Buckley and Fauber surveilled the house two more times

before the murder.

Approximately four days later, in the nighttime on July

16, 1986, Buckley and Fauber put their plan into motion.

Fauber drove with Buckley to a store near Urell’s home and

parked his motorcycle there. They went to an adjacent beach

and donned gloves, hats, and bandannas. Fauber carried a

sawed-off shotgun. Fauber mentioned that he might have to

kill Urell to prevent him from being a witness.

The two men walked to Urell’s home and entered

through a window. Buckley followed Fauber to the

bedroom, where Jarvis had said the drugs would be located.

They entered and found Urell sleeping in bed. As they

FAUBER V. DAVIS 7

entered, Urell woke up. In a fake Mexican accent, Fauber

said: “Don’t move.” Urell pleaded with Fauber not to hurt

him and said they could take anything they wanted. Buckley

held the shotgun, and Fauber forced Urell onto his stomach

and taped his hands behind his back.

With Urell detained, Fauber and Buckley searched the

residence and took assorted items, including a small amount

of cocaine. They also found a locked safe. Urell said it had

nothing valuable in it and that he did not know the

combination. Fauber then found an ax under the bed. Fauber

held the ax above Urell and, without warning, bludgeoned

him in the back of the neck with the ax’s blunt side. Buckley

heard the blow and left the room as Urell began making a

hissing noise. Seconds later, Fauber delivered a second

blow, which silenced Urell.

Fauber met Buckley in the kitchen and suggested putting

the safe in Urell’s vehicle. When Buckley asked him

whether Urell was dead, Fauber said he did not know.

Fauber then returned to the bedroom and Buckley heard

Fauber hit Urell several more times with the ax. Fauber and

Buckley loaded the safe onto Urell’s El Camino and drove

to Buckley’s apartment.

Upon arrival around 1:00 a.m., Fauber and Buckley went

to Rowan’s apartment to obtain a key to a basement

storeroom. Rowan saw a safe in the back of Urell’s El

Camino and asked Fauber if Urell had been home during the

burglary. Fauber responded that Urell had not been home.

Fauber and Buckley took everything they had stolen from

Urell’s residence and put it in a trailer owned by Buckley’s

mother. They then left to dispose of Urell’s El Camino over

a cliff.

8 FAUBER V. DAVIS

After returning to the apartment, Fauber and Buckley

used Urell’s cocaine. At this point, Rowan returned and

pressed Fauber about Urell’s whereabouts. Fauber then

admitted that Urell had been home. He also admitted that he

had hit Urell with an ax and believed he had killed him.

Fauber told Rowan he had killed Urell because Urell saw his

face, and Fauber “was not ready to leave Ventura yet.”

Fauber also acknowledged that Urell was struggling to

breath when he left.

The next day, Fauber discovered how to open the safe.

After emptying its contents, Fauber and Buckley took the

safe to another town and dumped it near a lake because

Rowan did not want it in his storeroom. The safe contained

small amounts of jewelry, gold, and silver coins; Jarvis was

directed to throw most of it away.

When Urell did not appear for work the next day, Urell’s

friend Ronald Siebold went to his home and found Urell’s

lifeless body lying face down with his hands taped behind

his back and a pillow on his head. The police arrived ten

minutes later. Sheriffs who responded to the call described

the room as “ransacked”—with drawers thrown open and

clothes turned out—consistent with a robbery. They found

an ax standing upright at the foot of the bed. Another police

detective found the remnants of narcotics paraphernalia.

The Chief Medical Examiner for Ventura County,

Dr. Frederick Lovell, examined Urell’s body at the scene.

He confirmed that Urell had died roughly 14 to 22 hours

earlier. He also observed that Urell’s shoulders and chest

had a blue hue, suggesting that his blood lacked sufficient

oxygen when he died.

Dr. Lovell also conducted an autopsy. The autopsy

demonstrated that Urell’s hands had been tied behind his

FAUBER V. DAVIS 9

back before he was killed. Blood splatter indicated that Urell

had been struck repeatedly in the back of the neck. Wounds

on Urell’s lower left neck extending towards the skull

evidenced closely grouped blows caused by a major force

from a rectangular object. The wounds likely were struck

from the same position and were consistent with the blunt

side of an ax. The blows had prompted a “large amount of

bleeding and hemorrhag[ing],” causing paralysis and

limiting Urell’s ability to breath. Urell also had a broken

neck and “one bone was separated from the other where

they’re normally tied together by a series of very heavy,

tough ligaments.” Dr. Lovell concluded that based on the

“heavy purple discoloration of the face and chest,” the

“extreme engorgement of the eyes” with bleeding under the

skin, and the widespread hemorrhaging, Urell had died of

either asphyxia or suffocation.

Over the next few weeks, police began to connect Fauber

to the murder. On July 20, 1986, they found Urell’s El

Camino 125 feet off the side of a cliff. Then, on July 31,

they found the door to Urell’s safe at a nearby lake.

Eventually, the police arrested Hal Simmon, an acquaintance

of Fauber’s, after discovering that Simmon had been using

Urell’s telephone calling card. Simmon told the police he

had received the number from “Brian and Curtis” and

described where they lived. This led authorities to Fauber

and Buckley.

In September 1986, police arrested Buckley for a traffic

violation. Buckley provided details about Urell’s murder,

believing the information would not be used against him.

That same month, police arrested Rowan for a parole

violation. Rowan admitted his involvement in the robbery

and discussed the murder.

10 FAUBER V. DAVIS

With the evidence mounting, the Ventura County police

sent a warrant for Fauber’s arrest to his hometown of

Española, New Mexico. Española police arrested Fauber,

and officers then flew to New Mexico to interview him and

take possession of any incriminating property. Fauber

waived his Miranda rights. He admitted to police that Jarvis

had told him about someone who had a lot of drugs and had

drawn him a diagram to help him commit the robbery. He

recalled that he and Buckley followed Jarvis and Rowan as

they drove past the house.

Police found a piece cut from Urell’s calling card in

Fauber’s wallet. In a camper that Fauber used in Ventura,

police also found a road atlas that belonged to Urell and that

was stamped with the name of his employer.

B

On January 7, 1987, the Ventura County District

Attorney (DA) charged Fauber with murder, robbery, and

burglary, and filed a notice of intent to seek the death

penalty. Fauber pleaded not guilty. In November 1987,

police arrested Buckley in connection with Urell’s murder.

As part of his plea agreement for second-degree murder,

Buckley agreed to testify against Fauber. The prosecution

granted Rowan full immunity on the condition that he too

testify against Fauber.

Fauber’s trial began in mid-December 1987. The

prosecution offered Rowan and Buckley as its principal

witnesses. Both confirmed the details of the murder and

Fauber’s involvement. Relevant to Fauber’s vouching and

ineffective assistance of counsel claim, the prosecution read

Buckley’s plea agreement to the jury and utilized the plea

agreement in the State’s closing argument. We will discuss

the facts relating to this issue in greater detail below in our

FAUBER V. DAVIS 11

analysis of the vouching-related claims. The jury convicted

Fauber of first-degree murder, robbery, and burglary.

Fauber, 831 P.2d at 257.

C

The trial then moved to the penalty phase for a

determination of whether Fauber should be sentenced to

death. In this phase, the State presented evidence that Fauber

took part in two uncharged killings, among other violent

misdeeds.

The prosecution presented evidence that a few months

before he returned to Ventura, Fauber murdered his longtime

friend, Jack Dowdy, Jr., and threatened Jack’s wife, Kim.

Witnesses testified that Fauber had fallen in love with Kim

and wanted her to move with him to Albuquerque. When

Kim did not agree, Fauber resorted to threats and violence,

pulling a gun on Jack, holding Kim at gunpoint, appearing at

Kim’s house unannounced and trying to choke her while she

slept, and telling Jack that he had ruined Fauber’s chances

with Kim and that he would therefore kill her.

Around this time, Jack disappeared. Fauber found Kim

and told her suggestively that Jack would not bother her

anymore. A couple of days later, Fauber confronted Kim

again and gave her an ultimatum: come with him or he would

kill everyone in her house. He then put a knife to her throat

until she agreed to leave with him. In the middle of May

1986, Kim’s uncle Tony confronted Fauber and asked him

to stop terrorizing his family. Fauber refused. Then, Fauber

admitted to Tony that he killed Jack. Fauber also later told

Buckley that “he had killed the husband of a girl named Kim

because Kim was afraid of her husband, who had been a

friend of [Fauber’s].” Fauber asked Buckley to help him dig

up the body and re-bury it so animals would not expose it.

12 FAUBER V. DAVIS

At the penalty phase, the prosecution also presented

evidence that Fauber murdered an acquaintance named

David Church at a Memorial Day party at Buckley’s

apartment in 1986. According to witnesses, Church had

appeared drunk at the party and demanded drugs. When

Church threatened to go to the police, Fauber and his friend,

Chris Caldwell, took Church away.

Police found Church’s decomposed body in a creek bed

months later. Buckley testified that Fauber told him he

killed Church with an ax handle, that Church “was a hard

guy to kill,” and that he needed to get rid of the ax because

it was covered in blood. Buckley testified that Caldwell had

also told him about the killing. Another witness from the

party, Pam McCormick, testified that she overheard a

conversation in which Fauber discussed how to get rid of a

body.

In response to the State’s case in aggravation, Fauber’s

counsel presented mitigating evidence concerning Fauber’s

troubled childhood and possible mental instability, and to

emphasize Fauber’s positive qualities. It is uncontradicted

that defense counsel called twenty-seven witnesses to testify

on Fauber’s behalf, including friends and family, a social

anthropologist who had conducted an eight-month

investigation into Fauber’s upbringing, and a psychologist

who administered intelligence and neuropsychological

screening tests on Fauber.

At the penalty phase, Fauber also wanted to present

evidence that the prosecution had initially made him a plea

offer that would have allowed Fauber to avoid the death

penalty in exchange for testifying against Caldwell and

Buckley, and that Fauber refused the offer. The trial court

disallowed this, finding that the plea agreement was “totally

irrelevant” because it “does not relate to the defendant’s

FAUBER V. DAVIS 13

character, prior record or circumstance of the offense.” The

trial court’s exclusion of Fauber’s unaccepted plea

agreement forms the basis for another assignment of error,

and we will set forth more facts relating to this issue below

in our analysis.

The jury sentenced Fauber to death.

D

The California Supreme Court affirmed Fauber’s

convictions and sentence on direct appeal, People v. Fauber,

831 P.2d 249 (Cal. 1992), and the United States Supreme

Court denied certiorari. Fauber v. California, 507 U.S. 1007

(1993). In January 1993, Fauber filed a state habeas petition,

which the California Supreme Court summarily denied on

the merits.

Fauber filed his original federal habeas petition in May

1997, which the district court stayed so that Fauber could

exhaust state post-conviction remedies. Fauber then filed a

first amended federal habeas petition. Following a round of

rulings by the district court, Fauber filed his operative

second amended federal habeas petition in 2012.

In May 2017, the district court denied Fauber’s petition.

The district court then certified four claims for appeal:

Claims 10(a), (c): whether the prosecutor

improperly vouched for Buckley’s credibility

by reading Buckley’s plea agreement to the

jury.

Claim 41(a)(1)(16): whether trial counsel

was ineffective for failing to object to the

alleged vouching.

14 FAUBER V. DAVIS

Claim 28(c): whether Fauber’s plea offer was

improperly excluded as mitigating evidence

at the penalty phase.

In this court, Fauber presses all four certified claims and

seeks a certificate of appealability on four additional

claims. 1

II

“We review a district court’s denial of a 28 U.S.C.

§ 2254 petition de novo.” Bolin v. Davis, 13 F.4th 797, 804

(9th Cir. 2021). But unless otherwise indicated below, we

evaluate Fauber’s claims under the deferential standard of

review in the Antiterrorism and Effective Death Penalty Act

of 1996 (AEDPA), because Fauber filed his federal habeas

petition after AEDPA’s effective date. See Lindh v. Murphy,

521 U.S. 320, 336 (1997). Under AEDPA, a federal habeas

petitioner cannot obtain relief unless the state court’s

decision (1) is “contrary to, or involved an unreasonable

application of, clearly established Federal law, as

determined by the Supreme Court of the United States”; or

(2) is “based on an unreasonable determination of the facts

1

Fauber requests that we expand the certificate of appealability to

include whether his counsel was ineffective in failing to present

additional mitigating evidence and not further rebutting the

prosecution’s aggravating evidence; whether the district court should

have granted a hearing on the destruction of certain physical evidence;

and whether the cumulative effect of trial counsel’s performance during

the penalty phase warrants relief. We have carefully reviewed these

assignments of error, including by ordering supplemental briefing. We

now DENY Fauber’s request to expand the certificate of appealability

because he has not made a “substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2); see also Miller-El v.

Cockrell, 537 U.S. 322, 327 (2003).

FAUBER V. DAVIS 15

in light of the evidence presented in the State court

proceeding.” 28 U.S.C. § 2254(d).

To meet AEDPA’s “‘unreasonable application of’ prong,

a petitioner ‘must show far more than that the state court’s

decision was merely wrong or even clear error.’” Bolin,

13 F.4th at 804 (quoting Shinn v. Kayer, 141 S. Ct. 517, 523

(2020) (per curiam)). The state court’s application of federal

law must stand unless it was “objectively unreasonable.”

Bell v. Cone, 535 U.S. 685, 698–99 (2002). To prevail,

Fauber must demonstrate that the state court’s decision “is

so obviously wrong that its error lies ‘beyond any possibility

for fairminded disagreement.’” Kayer, 141 S. Ct. at 523

(quoting Harrington v. Richter, 562 U.S. 86, 104 (2011)).

“This is a challenging standard to meet.” Bolin, 13 F.4th at

805.

III

We begin with Claims 10(a) and (c) and Claim

41(a)(1)(16), which all concern the prosecution’s alleged

vouching using Buckley’s plea agreement, and defense

counsel’s alleged ineffectiveness in failing to object to the

same. We hold that under AEDPA, the California Supreme

Court’s decision rejecting Fauber’s ineffective assistance

claim was not contrary to or an unreasonable application of

clearly established federal law. 28 U.S.C. § 2254(d)(1). We

further hold that Fauber procedurally defaulted his due

process vouching claims but that regardless, Fauber cannot

show prejudicial error.

A

We first set forth the relevant facts and rulings relating

to these claims. Buckley’s plea agreement stated that

prosecutors would conduct a preliminary interview with him

16 FAUBER V. DAVIS

to assess his credibility. If the DA did not find Buckley

credible, then Buckley’s case would proceed to trial. The

plea agreement provided that during Fauber’s trial, the judge

who heard Buckley’s testimony would “make any necessary

findings as to his truthfulness” for purposes of Buckley

honoring his plea agreement, if there were a dispute between

Buckley and the State. At Fauber’s trial, and during the

government’s direct examination of Buckley, the prosecutor

read the plea agreement to the jury and Buckley confirmed

that he entered it. Defense counsel did not object.

The prosecution returned to Buckley in its closing

argument. The prosecutor told jurors that Brian Buckley’s

credibility was the key to the case, stating at the outset: “If

you don’t believe anything he says, you’ll probably acquit

the defendant. If you believe some of what Brian Buckley

says, you’ll find the defendant guilty of robbery and burglary

and felony murder. And if you believe most of what Brian

Buckley says, you’ll convict the defendant of everything.”

Next, the prosecutor rhetorically asked the jury: “what

would motivate Brian Buckley to frame somebody who was

his good friend, his Army buddy, and in fact somebody who

was his good friend into August at least?” The prosecutor

told the jury to “remember that Brian Buckley has a

motivation in this case to testify truthfully. And truth is not

according to the DA, [or] to me. Truth is according to the

Judge.” The prosecution cited Buckley’s plea agreement

and said that “the most important part of that agreement is

that if there is some dispute as to Brian Buckley’s

truthfulness, that dispute will be determined by the trier of

fact, the Judge who hears the proceedings in which Brian

Buckley testifies.” Later, the prosecutor revisited this point

and noted that the “main element” of Buckley’s plea

agreement was that he had to testify truthfully. The

FAUBER V. DAVIS 17

prosecutor then read the agreement aloud, stopping to note

that the trial judge’s assessment of Buckley’s candor was

key to the plea agreement.

The prosecutor in closing argument emphasized record

evidence that, in the State’s view, showed that Buckley and

Rowan were credible witnesses. The prosecutor argued that

Buckley’s testimony was credible because it was supported

“in almost all the details” by Rowan’s testimony. Further,

the prosecution pointed out, Buckley’s core testimony was

confirmed by Fauber himself when he waived his Miranda

rights and admitted that Jarvis drew him a map of Urell’s

house that Fauber then used to scope out Urell’s residence.

The prosecutor at closing also underscored the

importance of Fauber’s confession to Rowan that he had

killed Urell. The prosecutor read some of Rowan’s more

critical testimony aloud and argued that Fauber’s admission

to Rowan was consistent with the autopsy results. Rowan

had testified that Fauber admitted he thought he killed Urell,

and that Urell was “having a hard time” breathing. The

autopsy found that Urell had died of either suffocation or

asphyxiation.

Before the prosecution’s case and during final

instructions, the trial judge instructed jurors that they were

the “sole judges” of witness credibility:

Every person who testifies under oath is a

witness. You are the sole judges of the

believability of a witness and the weight to be

given the testimony of each witness. In

determining the believability of a witness,

you may consider anything that has a

tendency in reason to prove or disprove the

truthfulness of the testimony of the witness.

18 FAUBER V. DAVIS

The trial judge also read an instruction that explained the

factors jurors could use to evaluate witness credibility,

including the witness’s ability to remember and

communicate, bias, motive, attitude, any prior inconsistent

statements, and any admission of untruthfulness. As defense

counsel would later do, during closing argument the

prosecutor reminded jurors of their responsibility to assess

witness credibility.

On direct appeal, the California Supreme Court rejected

Fauber’s vouching claim. Fauber, 831 P.2d at 264–66. It

held that Fauber forfeited this claim because his counsel had

not objected at trial. Id. at 264. Alternatively, the Court held

that even if the claim were preserved, there was no reversible

error. Id. The Court acknowledged that, upon a proper

objection, the trial court should have excluded the portions

of the plea deal suggesting that the district attorney or trial

judge would need to find Buckley credible. Id. at 265.

But the Court found that any error was harmless. It

explained that there was no prejudice because “[t]he

prosecutor argued for Buckley’s credibility based on the

evidence adduced at trial, not on the strength of extrajudicial

information obliquely referred to in the plea agreement.” Id.

Further, “common sense suggests” that the jury will assume

that the prosecution had found Buckley credible, “else he

would not be testifying.” Id. For these and other reasons,

“[t]he jury could not reasonably have understood Buckley’s

plea agreement to relieve it of the duty to decide, in the

course of reaching its verdict, whether Buckley’s testimony

was truthful.” Id.

B

We turn first to Fauber’s claim that his trial counsel

provided constitutionally ineffective assistance under the

FAUBER V. DAVIS 19

Sixth Amendment by not objecting to the prosecutor’s

reliance on Buckley’s plea agreement. Fauber argues that,

without the introduction of that agreement, jurors would not

have found Buckley to be a credible witness, and that

without Buckley’s credible testimony, the jury would not

have convicted him of Urell’s murder or sentenced him to

death.

The Supreme Court’s decision in Strickland v.

Washington, 466 U.S. 668 (1984), provides the governing

framework for evaluating this claim. See Bolin, 13 F.4th at

804. To prove ineffective assistance, Fauber must “show

both that his counsel provided deficient assistance and that

there was prejudice as a result.” Richter, 562 U.S. at 104.

Because the State does not argue that counsel adequately

performed, we will assume without deciding that counsel’s

performance was constitutionally deficient and limit our

analysis to the prejudice component.

To show prejudice, Fauber must prove that “there is a

reasonable probability that, but for counsel’s unprofessional

errors, the result . . . would have been different.” Strickland,

466 U.S. at 694. This standard is “highly demanding.”

Kayer, 141 S. Ct. at 523 (quotations omitted). “A reasonable

probability means a ‘substantial,’ not just ‘conceivable,’

likelihood of a different result.’” Id. (quoting Cullen v.

Pinholster, 563 U.S. 170, 189 (2011)); see also Bolin,

13 F.4th at 804. But under AEDPA, Fauber’s showing is

heightened. Given the AEDPA overlay, “the question is

whether the state court reasonably could have concluded that

the evidence of prejudice fell short of Strickland’s

deferential standard.” Staten v. Davis, 962 F.3d 487, 500

(9th Cir. 2020).

In this case, the California Supreme Court summarily

denied Fauber’s ineffective assistance claim on the merits.

20 FAUBER V. DAVIS

AEDPA applies under these circumstances. Cullen,

563 U.S. at 187. “Where a state court’s decision is

unaccompanied by an explanation, the habeas petitioner’s

burden still must be met by showing there was no reasonable

basis for the state court to deny relief.” Richter, 562 U.S.

at 98. As a result, we must determine “what arguments or

theories . . . could have supported the state court’s decision;

and then [] ask whether it is possible fairminded jurists could

disagree that those arguments or theories are inconsistent

with the holding in a prior decision of [the Supreme] Court.”

Id. at 102. We hold that the state court’s rejection of

Fauber’s Strickland claim was not objectively unreasonable

because the California Supreme Court could conclude that

Fauber failed to establish Strickland prejudice.

1

To begin, the state court could reasonably conclude that

the content and context of the alleged vouching makes it

unlikely to have had any material impact on jurors. Indeed,

that was what the California Supreme Court held on direct

appeal when it addressed Fauber’s underlying due process

vouching claim (after first concluding it was procedurally

defaulted). Fauber, 831 P.2d at 264–66. The record bears

out the California Supreme Court’s observation that at

closing argument, the prosecutor focused heavily on the

body of evidence that the jury had heard. Id. at 265. This

included the testimony of Buckley and Rowan confirming

the circumstances of Urell’s murder and Fauber’s role in it;

Fauber admitting the murder to Rowan; Fauber’s own

incriminating statements to police; and various other

evidence connecting Fauber to the crime.

In addition, the California Supreme Court could fairly

reason, as it did on direct appeal, that “common sense”

indicates that the jury “will usually assume . . . that the

FAUBER V. DAVIS 21

prosecutor has at some point interviewed the principal

witness and found his testimony believable, else he would

not be testifying.” Fauber, 831 P.2d at 265. That the

prosecution to some extent reaffirmed a point the jury would

likely presume anyway further reduces the prejudicial

impact of the State utilizing Buckley’s plea agreement at

closing.

Any prejudice was further mitigated by the trial court’s

instructions to the jury—and reminders from both the

prosecution and defense—that the jurors were the ultimate

arbiters of witness credibility. Jurors were repeatedly told

they were the “sole judges” of whether a witness was

believable. The trial court further instructed the jury as to

the factors they could consider in evaluating each witness’s

credibility, such as the witness’s motive, bias, and ability to

remember and communicate.

The repeated admonitions to jurors that they would

assess witness credibility further reduces the prejudice

associated with the alleged vouching. The California

Supreme Court could permissibly conclude that the

instructions made it unlikely that jurors believed that

someone other than them bore the responsibility for

assessing Buckley’s veracity. See Richardson v. Marsh, 481

U.S. 200, 206 (1987) (applying “the almost invariable

assumption of the law that jurors follow their instructions”);

United States v. Shaw, 829 F.2d 714, 718 (9th Cir. 1987)

(holding that vouching was harmless because the

instructions “could only be taken by the jury to mean that the

credibility of the witness was by no means established by the

plea agreement, and that the issue was wholly open for the

jury to decide”).

Fauber relatedly takes issue with the prosecutor’s

statement that the trial judge would determine whether

22 FAUBER V. DAVIS

Buckley had testified truthfully in the event of a dispute. He

argues that this made the jury believe they had less

responsibility to gauge Buckley’s credibility. But the

context of this statement belies this inference. The

prosecutor raised Buckley’s plea agreement to underscore

that Buckley had an incentive to testify truthfully because

the trial court would determine his credibility, in the event

of a dispute. Fauber, 831 P.2d at 265. As the California

Supreme Court validly reasoned on direct appeal, it was

obviously “implicit . . . that the need for such a

determination would arise, if at all, in connection with

Buckley’s sentencing, not in the process of trying [Fauber’s]

guilt or innocence.” Id. at 265. In other words, “[t]he

context of the remarks made it clear that determination

would occur if the prosecutor sought to repudiate its

agreement with Buckley after trial in defendant’s case.” Id.

at 266.

2

The California Supreme Court could also reject Fauber’s

ineffective assistance claim because the evidence against

Fauber was overwhelming, confirming Buckley’s testimony

and Fauber’s guilt irrespective of the prosecution’s reliance

on Buckley’s plea agreement. Cullen, 563 U.S. at 198

(holding that petitioner failed to show prejudice due to the

extensive evidence that the prosecution presented); United

States v. Young, 470 U.S. 1, 17–20 (1985) (prosecutorial

vouching was harmless in light of the “overwhelming

evidence” of guilt); United States v. Lew, 875 F.2d 219, 223–

24 (9th Cir. 1989) (holding that government’s vouching for

two witnesses by eliciting testimony about the truthfulness

requirements of their plea agreements did not rise to the level

of plain error because “there was substantial evidence

FAUBER V. DAVIS 23

against [the defendant] independent of the credibility of” the

two witnesses).

To begin, Mel Rowan—testifying under full immunity—

corroborated much of Buckley’s testimony. Rowan, who

was Buckley’s neighbor and socialized with Fauber before

and after the murder, confirmed the circumstances

surrounding the crime. Rowan testified that Jarvis told

Fauber and Buckley about Urell. He confirmed that Jarvis

drew a map of Urell’s house and a layout of the interior to

help them commit the robbery. He told the jury that he drove

by Urell’s home with Fauber, Buckley, and Jarvis to scout it

out. He testified that Fauber and Buckley spoke about

committing the burglary. And he confirmed that Fauber had

a sawed-off shotgun that night. Each of these details aligned

with Buckley’s testimony and Fauber’s admissions after

waiving his Miranda rights.

Rowan then corroborated what happened after the

murder. He testified that Fauber and Buckley returned to the

apartment at 1:00 a.m. and that he helped Fauber unload the

safe from Urell’s El Camino and move it into the storage

area beneath the apartment. He recounted that Fauber

managed to open part of the safe. And he noted that Fauber

and Buckley disposed of the safe because Rowan did not

want it in his storeroom. Rowan also testified that he told

Fauber and Buckley to “get rid of [Urell’s] El Camino,” that

Fauber and Buckley drove off with the vehicle, and that he

did not see it again. Rowan’s testimony matched Buckley’s

in each respect.

Perhaps most importantly, Rowan testified that Fauber

murdered Urell and how he did it. Rowan testified that

Fauber told him that Urell was home during the robbery.

Then, when Rowan asked Fauber if he had hurt Urell, Fauber

admitted that “he thought he’d killed him.” Fauber said that

24 FAUBER V. DAVIS

he had “hit him” and that Urell “was having a hard time”

breathing. Fauber also told Rowan why he killed Urell:

Urell saw his face, and Fauber “wasn’t ready to leave

Ventura yet.” This matched Buckley’s testimony that

Fauber had killed Urell to prevent him from being a witness

to the crime. And the autopsy also corroborated Rowan’s

testimony—showing that Urell was struck repeatedly with

an object consistent with the blunt side of an ax, and that he

died of asphyxiation or suffocation. Underscoring Rowan’s

importance at trial, the prosecutor’s discussion of Rowan’s

testimony was among the last topics the jury heard before

deliberating.

Other evidence also corroborates Buckley’s testimony

about the circumstances surrounding the crime. Fauber

himself confirmed what happened before the murder when

he waived his Miranda rights and admitted that Jarvis told

him about Urell and that he scouted Urell’s house with

Jarvis, Rowan, and Buckley. And physical evidence

connected Fauber to Urell, namely, Hal Simmon using

Urell’s telephone card number (Simmon said that Fauber

gave it to him), Fauber having part of the calling card in his

wallet, and Urell’s road atlas being found in a camper that

Fauber used.

* * *

In sum, the California Supreme Court could reasonably

conclude that even if Fauber’s counsel acted deficiently in

failing to object to the prosecution’s use of Buckley’s plea

agreement, there was no prejudice under Strickland.

Fairminded jurists could determine that Fauber’s counsel

performing differently would not create a “substantial

likelihood of a different result” than the one the jury reached.

Kayer, 141 S. Ct. at 524 (quoting Cullen, 563 U.S. at 189).

FAUBER V. DAVIS 25

C

We turn next to Claims 10(a) and 10(c), which share a

factual nexus with Fauber’s ineffective assistance

allegations. Here Fauber argues that the prosecutor

vouching for Buckley’s credibility through his plea

agreement, and the state trial court’s allowance of the same,

violated Fauber’s due process rights under the Fourteenth

Amendment. See Darden v. Wainwright, 477 U.S. 168, 181

(1986) (“The relevant question is whether the prosecutors’

comments ‘so infected the trial with unfairness as to make

the resulting conviction a denial of due process.’”) (quoting

Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)).

Fauber’s argument fails for two reasons: this claim is

procedurally defaulted and Fauber cannot show prejudice

even if the claim were preserved.

First, Fauber’s claim is procedurally defaulted. We lack

jurisdiction “when (1) a state court has declined to address a

prisoner’s federal claims because the prisoner had failed to

meet a state procedural requirement, and (2) the state

judgment rests on independent and adequate state procedural

grounds.” Walker v. Martin, 562 U.S. 307, 316 (2011)

(quotations and alterations omitted). To qualify as

independent, a state procedural rule must not “rest primarily

on federal law, or . . . be interwoven with the federal law.”

Coleman v. Thompson, 501 U.S. 722, 735 (1991). “State

rules count as adequate if they are firmly established and

regularly followed.” Johnson v. Lee, 578 U.S. 605, 606

(2016) (per curiam) (quotations omitted).

Here, the California Supreme Court held that Fauber

procedurally defaulted his due process vouching claim by

failing to object to the prosecutor reading Buckley’s plea

agreement to the jury. Fauber, 831 P.2d at 264. This

holding rested on California’s contemporaneous objection

26 FAUBER V. DAVIS

rule. Under California law, a party must make a proper and

timely objection at trial to preserve the argument on appeal.

See Cal. Evid. Code. § 353; People v. Ramos, 15 Cal.4th

1133, 1171 (1997).

We have repeatedly recognized California’s

contemporaneous objection rule as “an adequate and

independent state law ground” that forecloses our review.

See, e.g., Zapien v. Davis, 849 F.3d 787, 794 n.2 (9th Cir.

2015); Fairbank v. Ayers, 650 F.3d 1243, 1256 (9th Cir.

2011); Inthavong v. Lamarque, 420 F.3d 1055, 1058 (9th

Cir. 2005); Paulino v. Castro, 371 F.3d 1083, 1092–93 (9th

Cir. 2004). That remains the case even though the California

Supreme Court also went on to address Fauber’s claim on

the merits. See, e.g., Harris v. Reed, 489 U.S. 255, 264 n.10

(1989).

For the first time in his reply brief, Fauber argues that we

should not find his due process vouching claim procedurally

barred because he has shown cause and prejudice to excuse

the default. While we could find this argument forfeited

because Fauber did not raise it in his opening brief, United

States v. Ullah, 976 F.2d 509, 514 (9th Cir. 1992), the

argument fails regardless.

We may review a state court decision that rests on an

adequate and independent state ground when a party has

shown cause for the forfeiture and prejudice flowing from it.

Walker, 562 U.S. at 316. To show cause, a petitioner must

point to “some objective factor external to the defense [that]

impeded his adherence to the procedural rule.” United States

v. Skurdal, 341 F.3d 921, 925 (9th Cir. 2003) (quotations

omitted). “An attorney error does not qualify as ‘cause’ to

excuse a procedural default unless the error amounted to

constitutionally ineffective assistance of counsel.” Davila v.

Davis, 137 S. Ct. 2058, 2062 (2017). Prejudice to excuse the

FAUBER V. DAVIS 27

default “requires the petitioner to establish not merely that

the errors at trial created a possibility of prejudice, but that

they worked to his actual and substantial disadvantage,

infecting his entire trial with error of constitutional

dimensions.” Bradford v. Davis, 923 F.3d 599, 613 (9th Cir.

2019) (quotations and alterations omitted).

Fauber cannot meet the “cause and prejudice” standard.

To excuse his procedural default, Fauber points only to

counsel’s alleged ineffective assistance in failing to object to

the prosecution’s use of Buckley’s plea agreement. But we

have already explained that counsel’s allegedly deficient

performance did not rise to the level of a Sixth Amendment

violation because Fauber cannot show prejudice. Given the

State’s extensive evidence showing that Fauber killed Urell,

Fauber cannot demonstrate that the result of his trial would

have been different had his counsel objected and

successfully prevented the prosecution from relying upon

Buckley’s plea agreement. United States v. Ratigan,

351 F.3d 957, 965 (9th Cir. 2003) (holding that “[i]n order

to excuse his procedural default, [petitioner] must show that

counsel’s performance was deficient and that the deficient

performance prejudiced the defense”) (quotations omitted).

Second, even if Fauber’s due process claims were not

procedurally defaulted, they would fail on the merits

because, once again, the alleged vouching was harmless.

The parties spar at length over whether, assuming we could

get past the procedural default, AEDPA should apply to the

California Supreme Court’s alternative holding that

Fauber’s vouching claim failed for lack of prejudice, given

the California Supreme Court’s reliance on a state law

harmlessness standard. We need not resolve this

disagreement. Even without AEDPA, under the standard in

28 FAUBER V. DAVIS

Brecht v. Abrahamson, 507 U.S. 619 (1993), Fauber cannot

prevail.

Under Brecht, “habeas relief is only available if the

constitutional error had a ‘substantial and injurious effect or

influence’ on the jury verdict or trial court decision.” Jones

v. Harrington, 829 F.3d 1128, 1141 (9th Cir. 2016) (quoting

Brecht, 507 U.S. at 623); see also Davis v. Ayala, 576 U.S.

257, 268 (2015). “If so, or if one is left in grave doubt, the

conviction cannot stand.” Gill v. Ayers, 342 F.3d 911, 921

(9th Cir. 2003) (quoting Kotteakos v. United States, 328 U.S.

750, 765 (1946)). Here, for the same reasons that we

rejected Fauber’s ineffective assistance claim, the

prosecution’s reliance on Buckley’ plea agreement did not

exert a substantial and injurious effect on the jury.

Therefore, Fauber’s due process claims would fail even

setting aside the unexcused procedural default.

IV

In Claim 28(c), Fauber argues that the state trial court

improperly excluded his unaccepted plea offer as mitigating

evidence at the penalty phase. We conclude that Fauber is

not entitled to relief. No clearly established federal

constitutional law holds that an unaccepted plea offer

qualifies as evidence in mitigation that must be admitted in

a capital penalty proceeding. Regardless, Fauber cannot

show prejudice: given the extreme aggravating factors that

the State put forward coupled with Fauber’s already

extensive but unsuccessful presentation of mitigating

evidence, there is no basis to conclude that the jury would

have reached a different result if it had considered Fauber’s

unaccepted plea.

FAUBER V. DAVIS 29

A

We again begin with the relevant facts and rulings. At

the penalty phase, Fauber wanted to present evidence that

the prosecution had initially offered him a plea that would

have allowed him to avoid the death penalty in exchange for

testifying against Buckley and Caldwell, and that Fauber

refused the offer. Fauber’s counsel explained that he wanted

to present Fauber’s rejection of the plea deal as character

evidence that demonstrated Fauber’s loyalty to his friends.

He also wanted to present the plea agreement itself as

evidence that the district attorney “felt that [Fauber] was an

appropriate [person] for life imprisonment rather than the

gas chamber.” The prosecutor moved to exclude any

reference to the unaccepted plea.

The trial court found the evidence inadmissible under

California Evidence Code § 352. Regarding the plea offer

itself, the court concluded that it was “totally irrelevant”

because it “does not relate to the defendant’s character, prior

record or circumstance of the offense.” The court noted that

such an agreement is “just the district attorney’s position at

one time for reasons known to the district attorney. It has no

bearing on the defendant whatsoever.” The trial court also

excluded Fauber’s rejection of the plea offer. Fauber

rejecting the offer had “very low relevancy” and “very low

probative value” as mitigating evidence of loyalty. Instead,

the plea agreement threatened to confuse the jury and unduly

prolong the trial.

At closing argument, the prosecution maintained that

Fauber deserved the death penalty. The prosecution argued

to the jury that “the only appropriate penalty in this case is

the death penalty,” stating, for example: “The defendant has

demonstrated vividly that he is a man who, if given the

opportunity, will kill again, maybe a prison guard, maybe an

30 FAUBER V. DAVIS

inmate, maybe somebody that makes friends with him,

somebody that annoys him.”

On direct appeal, the California Supreme Court rejected

Fauber’s claim that the trial court erred in excluding from

the penalty phase evidence about Fauber’s unaccepted plea

offer. Fauber, 831 P.2d at 288. The Court recognized that

“a capital defendant must be allowed to present all relevant

mitigating evidence to the jury.” Id. (citing Skipper v. South

Carolina, 476 U.S. 1, 4 (1986), and Lockett v. Ohio, 438 U.S.

586 (1978)). But at the same time, “the trial court determines

relevancy in the first instance and retains discretion to

exclude evidence whose probative value is substantially

outweighed by the probability that its admission will create

substantial danger of confusing the issues or misleading the

jury.” Id. (citing Cal. Evid. Code § 352). In this case, the

California Supreme Court held, the trial court did not err in

treating Fauber’s refusal of a plea offer as inadmissible. Id.

The Court agreed with the trial court that Fauber’s plea

agreement provided no insight into his character and was

“meaningless.” Id. at 288. “Standing alone,” the Court

concluded, “[t]he fact that the offer was made, like the fact

that it was refused,” “sheds no light on [Fauber’s] character

and would likely mislead rather than assist the jury in its

determination.” Id. In particular, “such an offer may reflect

leniency rather than a belief that the defendant is less

culpable for the crime charged.” Id.

Considering Fauber’s rejection of the plea offer, the

California Supreme Court further noted that “[t]o supply

meaning to the bare fact of the refusal, additional inquiry

regarding the underlying reasons would have been required.”

Id. But “[s]uch examination, as the trial court concluded,

had the potential to mislead and confuse the jury.” Id.

FAUBER V. DAVIS 31

Justice Mosk wrote a separate concurrence on this issue.

Id. at 296–97 (Mosk, J., concurring). He concluded that the

trial court may have erred in excluding evidence of plea

bargaining but that the evidence “would have added little, if

anything, of marginal value. Therefore, any error could not

have affected the outcome within any reasonable possibility,

and must be held harmless beyond a reasonable doubt.” Id.

at 297.

B

Before us, Fauber renews his argument that the state

court erred in excluding as supposed mitigating evidence the

State’s life-sentence plea offer and Fauber’s rejection of it.

On appeal, however, Fauber has adjusted his argument

somewhat, maintaining that he was entitled to introduce this

evidence in mitigation as a matter of due process to rebut the

State’s argument that he presented a future danger. The

State argues that Fauber forfeited this argument by failing to

raise it either before the state court or the district court.

It is certainly true that Fauber’s theory at the very least

reflects some degree of refinement from the argument he

presented previously. In state court and before the district

court, Fauber largely argued that the unaccepted plea was

mitigating because it reflected positively on his character by

showing his loyalty to his friends. Fauber maintained that

the plea offer was “a matter in mitigation bearing upon the

circumstances of the offense and the character of the

Defendant herein.” The state trial court and California

Supreme Court appear to have reasonably understood

Fauber’s argument in those terms.

Before the state trial court, however, Fauber’s counsel

also stated that the plea offer was relevant because it

reflected “the district attorney’s attitude toward [Fauber] and

32 FAUBER V. DAVIS

the offenses at some point prior to trial.” And Fauber stated

in his state court briefs that the plea offer showed the district

attorney “felt that [Fauber] was an appropriate [person] for

life imprisonment rather than the gas chamber,” because “a

prior offer of a life sentence . . . suggests that in the opinion

of the prosecutor, the defendant’s character is such that he

should not be put to death.” At least to this extent, Fauber

preserved the argument he raises now. We thus turn to the

merits of this claim.

C

1

In a series of decisions beginning with Lockett v. Ohio,

438 U.S. 586, 604–05 (1978) (plurality op.), Eddings v.

Oklahoma, 455 U.S. 104, 112 (1982), and Skipper v. South

Carolina, 476 U.S. 1, 4 (1986), the Supreme Court

established that in the capital sentencing context, and under

the Eighth and Fourteenth Amendments, “the sentencer may

not be precluded from considering, and may not refuse to

consider, any constitutionally relevant mitigating evidence.”

Buchanan v. Angelone, 522 U.S. 269, 276 (1998). In this

line of cases, the Supreme Court held that capital sentencers

may “not be precluded from considering, as a mitigating

factor, any aspect of a defendant’s character or record and

any of the circumstances of the offense that the defendant

proffers as a basis for a sentence less than death.” Eddings,

455 U.S. at 110 (quoting Lockett, 438 U.S. at 604–05); see

also McCleskey v. Kemp, 481 U.S. 279, 306 (1987). In

addition, “[w]here the prosecution specifically relies on a

prediction of future dangerousness in asking for the death

penalty,” the “relevance of evidence of probable future

conduct in prison as a factor in aggravation or mitigation of

an offense is underscored.” Skipper, 476 U.S. at 5 n.1.

FAUBER V. DAVIS 33

The Supreme Court has also made clear, however, that

these constitutional requirements do not render states

incapable of placing any limits on what might qualify as

mitigating evidence. Lockett affirmed that “[n]othing in this

opinion limits the traditional authority of a court to exclude,

as irrelevant, evidence not bearing on the defendant’s

character, prior record, or the circumstances of his offense.”

438 U.S. at 604 n.12. Thus, state courts in penalty phase

proceedings “‘retain the traditional authority to decide that

certain types of evidence may have insufficient probative

value to justify their admission,’” and “they may enact

reasonable rules governing whether specific pieces of

evidence are admissible.” United States v. Tsarnaev, 142 S.

Ct. 1024, 1038 (2022) (quoting Skipper, 476 U.S. at 11

(Powell, J., concurring in the judgment)). The Supreme

Court has thus “expressly held that ‘the Eighth Amendment

does not deprive’ a sovereign ‘of its authority to set

reasonable limits upon the evidence a capital defendant can

submit, and control the manner in which it is submitted.” Id.

(quoting Oregon v. Guzek, 546 U.S. 517, 526 (2006))

(alterations omitted); see also Stenson v. Lambert, 504 F.3d

873, 891 (9th Cir. 2007) (holding under AEDPA that state

court was not objectively unreasonable in excluding claimed

mitigating evidence).

Fauber relies heavily on two of our cases, Summerlin v.

Schriro, 427 F.3d 623, 640 (9th Cir. 2005) (en banc), and

Scott v. Schriro, 567 F.3d 573, 584 (9th Cir. 2009) (per

curiam), to argue that his unaccepted plea offer should

qualify as mitigating evidence. In Summerlin, we held that

capital defense counsel provided constitutionally deficient

assistance of counsel by “utterly fail[ing] in his duty to

investigate and develop potential mitigating evidence for

presentation at the penalty phase.” 427 F.3d at 631. In

explaining why counsel’s deficient performance caused

34 FAUBER V. DAVIS

prejudice, we noted (among other things) that the prosecutor

had initially offered the defendant a plea agreement that

would have spared his life, but the offer was later withdrawn.

Id. 640–41. We regarded the unentered plea agreement as

supportive of Strickland prejudice because it showed that

“this was not by any means a clear-cut death penalty case.”

Id. at 640.

Summerlin did not address whether the unaccepted plea

offer was itself mitigating evidence that the sentencer was

required to consider. But Scott did address it, although in a

somewhat truncated fashion. In Scott, we held that the state

court had relied on an inadequate procedural bar in denying

a capital defendant’s request for post-conviction relief.

567 F.3d at 576–77. In detailing the evidentiary proceedings

that should take place on remand on the defendant’s claim

that his counsel provided ineffective assistance at the penalty

phase, we specified areas of mitigating evidence that the

court should evaluate. Id. 583–85. Relevant here, we noted

that the prosecution had made a plea offer to the defendant,

but that defense counsel had rejected it over the defendant’s

objection. Id. at 584. Citing Summerlin, we stated that

“evidence of the plea offer could have been introduced

during the sentencing phase as mitigation.” Id. That was

because “[t]he plea offer’s mitigatory effect is clear: the

prosecution thought this was not a clear-cut death penalty

case.” Id. (citing Summerlin, 427 F.3d at 631). 2

2

In a parenthetical, Scott described Summerlin as “holding that

evidence the prosecution offered to allow the defendant to plead guilty

to second-degree murder and aggravated assault was mitigating evidence

that could be admitted in the sentencing phase after the defendant had

been found guilty of first-degree murder.” Scott, 567 F.3d at 584 (citing

Summerlin, 427 F.3d at 640). While Scott would bind us in an

appropriate case, its description of Summerlin was not accurate.

FAUBER V. DAVIS 35

Although supportive of Fauber in some sense, these

cases do not govern here. Summerlin did not decide the same

issue we now consider, 427 F.3d at 640–41, and neither case

decided the issue under AEDPA’s standard of review, see

Scott, 567 F.3d at 584, 586 (no state court decision on the

merits); Summerlin, 427 F.3d at 628–29 (habeas petition

filed pre-AEDPA). Regardless of how close Scott or

Summerlin might be to this case, the question before us is

whether the California Supreme Court’s decision was

“contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the

Supreme Court of the United States.” 28 U.S.C.

§ 2254(d)(1) (emphasis added).

And on this point, the Supreme Court has been clear:

“circuit precedent does not constitute ‘clearly established

Federal law, as determined by the Supreme Court,’

28 U.S.C. § 2254(d)(1). It therefore cannot form the basis

for habeas relief under AEDPA.” Parker v. Matthews,

567 U.S. 37, 48 (2012) (per curiam); see also, e.g., Lopez v.

Smith, 574 U.S. 1, 4 (2014) (per curiam) (“We have

emphasized, time and again, that the Antiterrorism and

Effective Death Penalty Act of 1996 (AEDPA), 110 Stat.

1214, prohibits the federal courts of appeals from relying on

their own precedent to conclude that a particular

constitutional principle is ‘clearly established.’”); Marshall

v. Rodgers, 569 U.S. 58, 64 (2013) (per curiam) (holding that

under AEDPA, circuit precedent may not be “used to refine

or sharpen a general principle of Supreme Court

jurisprudence into a specific legal rule that th[e] Court has

not announced”).

When we consider the only precedent that matters here—

Supreme Court precedent—we cannot conclude that the

state court’s denial of relief was objectively unreasonable.

36 FAUBER V. DAVIS

The reason is straightforward: the Supreme Court has never

held that an unaccepted plea offer qualifies as

constitutionally relevant mitigating evidence, whether to

rebut future dangerousness or for any other allegedly

mitigating reason. See Hitchcock v. Sec’y, Florida Dep’t of

Corr., 745 F.3d 476, 482 (11th Cir. 2014) (“The Supreme

Court has never held that a prosecutor’s offer to take the

death penalty off the table in return for a guilty plea is a

mitigating circumstance.”). Fauber relies on the general

principle that states “cannot limit the sentencer’s

consideration of any relevant circumstance that could cause

it to decline to impose the death penalty.” McCleskey,

481 U.S. at 306. But for AEDPA purposes, that general

principle is too general. And Fauber has not shown that the

California Supreme Court unreasonably applied it.

The Supreme Court has repeatedly reminded lower

courts applying AEDPA not to “fram[e] [Supreme Court]

precedents at a high level of generality.” Nevada v. Jackson,

569 U.S. 505, 512 (2013) (per curiam); see also Brown v.

Davenport, 142 S. Ct. 1510, 1525 (2022); Woods v. Donald,

575 U.S. 312, 318 (2015). Were the rule otherwise, lower

courts “could transform even the most imaginative extension

of existing case law into clearly established federal law,”

“collapsing the distinction between ‘an unreasonable

application of federal law’ and what a lower court believes

to be ‘an incorrect or erroneous application of federal law.”

Jackson, 569 U.S. at 512 (quoting Williams v. Taylor,

529 U.S. 362, 412 (2000)). Such an approach “would defeat

the substantial deference that AEDPA requires.” Id.

Here, nothing in Supreme Court precedent establishes

that an unaccepted plea offer reflects an “aspect of a

defendant’s character or record [or] any of the circumstances

of the offense,” such that a state court must treat it as

FAUBER V. DAVIS 37

constitutionally relevant mitigating evidence. Eddings,

455 U.S. at 110. Even if the rule of Lockett could be

extended in that manner, nothing in Supreme Court

precedent mandated that extension. See White v. Woodall,

572 U.S. 415, 426 (2014) (holding that AEDPA “does not

require state courts to extend [Supreme Court] precedent or

license federal courts to treat the failure to do so as error”).

It would therefore not be objectively unreasonable for a

state court to instead conclude that an unaccepted plea offer

differs from the types of mitigating evidence classically

treated as constitutionally relevant, such as cognitive

limitations, see e.g., Smith v. Texas, 543 U.S. 37, 44 (2004),

an abusive upbringing, see, e.g., Wiggins v. Smith, 539 U.S.

510, 525, 528 (2003); Eddings, 455 U.S. at 115; the

circumstances of the offense, see, e.g., Parker v. Dugger,

498 U.S. 308, 314 (1991); or positive character traits, see,

e.g., Wong v. Belmontes, 558 U.S. 15, 21 (2009) (per

curiam). That is, given the various reasons that plea offers

are made (and rejected), they could be regarded as not

meaningfully tied to the defendant’s “personal responsibility

and moral guilt,” Enmund v. Florida, 458 U.S. 782, 801

(1982), or “directly related to the personal culpability of the

criminal defendant,” Penry v. Lynaugh, 492 U.S. 302, 319

(1989), overruled on other grounds by Atkins v. Virginia,

536 U.S. 304 (2002). A state court could thus conclude that

introducing this evidence at the penalty phase is not

consonant with the constitutional objectives of the penalty

phase determination itself.

For these reasons, we respectfully disagree with our fine

dissenting colleague that the alleged constitutional violation

here is clearly established under AEDPA. The dissent

asserts that because the Supreme Court has “adopted a broad

rule” “requiring the admission of any relevant mitigating

38 FAUBER V. DAVIS

evidence,” it follows that the California Supreme Court’s

decision allowing the exclusion of the plea offer was

contrary to clearly established federal law. But under

AEDPA, when the Supreme Court sets forth rules that are

“more general, . . . their meaning must emerge in application

over the course of time.” Yarborough v. Alvarado, 541 U.S.

652, 664 (2004).

That is the case here. The Supreme Court has not

categorized an unaccepted plea offer as constitutionally

relevant mitigating evidence. Skipper, on which the dissent

principally relies, did not address that issue. And consistent

with the states’ traditional authority to place limits on the

admission of evidence that is insufficiently probative in

mitigation, Tsarnaev, 142 S. Ct. at 1038; Lockett, 438 U.S.

at 604 n.12, the California Supreme Court could reasonably

regard an unaccepted plea as qualitatively different from

other forms of evidence that have been regarded as

constitutionally mitigating. The dissent’s contrary position

would violate AEDPA’s precepts.

2

Further confirmation of this is found in the many cases

that have held—contrary to our decision in Scott—that

unaccepted plea offers do not qualify as mitigating evidence.

As the Eleventh Circuit has recognized, “[e]vidence of a

rejected plea offer for a lesser sentence . . . is not a mitigating

circumstance because it sheds no light on a defendant’s

character, background, or the circumstances of his crime.”

Hitchcock, 745 F.3d at 483. Indeed, it appears that every

other court besides our own has reached this conclusion. See

Wright v. Bell, 619 F.3d 586, 600 (6th Cir. 2010); Owens v.

Guida, 549 F.3d 399, 422 (6th Cir. 2008); Bennett v. State,

933 So. 2d 930, 953 (Miss. 2006); Howard v. State,

238 S.W.3d 24, 47 (Ark. 2006); Neal v. Commonwealth,

FAUBER V. DAVIS 39

95 S.W.3d 843, 852–53 (Ky. 2003); Wisehart v. State,

693 N.E.2d 23, 64 (Ind. 1998); Wiggins v. State, 597 A.2d

1359, 1370 (Md. 1991), reversed on other grounds by

Wiggins v. Smith, 539 U.S. 510 (2003); Ross v. State,

717 P.2d 117, 122 (Okla. Crim. App. 1986).

We do not cite these out-of-circuit lower court cases as

reflective of clearly established law under § 2254(d)(1), but

rather as demonstrating that fairminded jurists could reach

the same conclusion that these many courts have. “[I]n the

face of authority that is directly contrary” to our case law,

“and in the absence of explicit direction from the Supreme

Court,” we “cannot hold” that the California Supreme

Court’s decision violates clearly established federal law.

Boyd v. Newland, 467 F.3d 1139, 1152 (9th Cir. 2006)

(amended op.); see also Kessee v. Mendoza-Powers,

574 F.3d 675, 679 (9th Cir. 2009) (“Because the Supreme

Court has not given explicit direction and because the state

court’s interpretation is consistent with many other courts’

interpretations, we cannot hold that the state court’s

interpretation was contrary to, or involved an unreasonable

application of, Supreme Court precedent.”).

Instead, cases like the Eleventh Circuit’s decision in

Hitchcock show how reasonable jurists could conclude that

an unaccepted plea agreement is not constitutionally relevant

mitigating evidence. Hitchcock held that a capital

defendant’s non-acceptance of a plea is “devoid of any moral

significance” from a capital punishment perspective because

Eighth Amendment mitigation is not “a matter of a particular

prosecutor’s willingness to bargain.” 745 F.3d at 482. In

particular, the Eleventh Circuit concluded:

Such a plea offer does not by itself show that

the prosecutor believed the defendant did not

deserve the death penalty. A plea offer of a

40 FAUBER V. DAVIS

non-capital sentence in a capital case may

simply reflect a desire to conserve

prosecutorial resources, to spare the victim’s

family from a lengthy and emotionally

draining trial, to spare them the possibility of

protracted appeal and post-conviction

proceedings (spanning in this case more than

three decades), or to avoid any possibility,

however slight, of an acquittal at trial. 3

Id. at 483. And although it did not decide the question of

constitutional relevance on this basis, the Eleventh Circuit

pointed out that “requiring the admission of rejected plea

offers as mitigating evidence in capital cases could have the

pernicious effect of discouraging prosecutors from

extending plea offers in the first place.” Id. at 484 & n.2

(citing Wright, 619 F.3d at 600).

Other cases rejecting Fauber’s argument have employed

similar reasoning as Hitchcock. See, e.g., Wright, 619 F.3d

at 599–601; Owens, 549 F.3d at 419–22; Neal, 95 S.W.3d

at 852–53. And applying AEDPA, the Sixth Circuit in

Wright rejected Fauber’s same argument in response to the

defendant’s contention that due process allowed him to

utilize the unaccepted plea to rebut the prosecution’s

argument of future dangerousness. See 619 F.3d at 599–600

(“Although our opinion in Owens did not address the

specific rebuttal argument that Wright has made before this

court—that Wright should be allowed to present evidence of

the alleged plea offer to rebut statements by the State at

closing argument suggesting that Wright might pose a

3

Indeed, as the dissent notes, the prosecutor told the trial court that

it made the initial plea offer to Fauber because it “did not have enough

evidence to convict Buckley and Rowan.”

FAUBER V. DAVIS 41

danger to other inmates if he received a life sentence rather

than the death penalty—[Owens’s] determination that plea

negotiations are not relevant evidence of mitigating

circumstances is still relevant here.”). As the Sixth Circuit

explained, “nothing in the alleged plea offer constitutes

relevant evidence that Wright would not pose a danger if

given a life sentence.” Id. at 601. That is because “[t]he

existence of a plea offer might indicate only that the state

believed its important interests in judicial efficiency and

finality of judgments were sufficient to outweigh any

potential risk associated with a life sentence, not that those

risks did not exist.” Id.

In sum, other than our decision in Scott, the cases that

have addressed Fauber’s argument side with the California

Supreme Court’s result and reasoning here. Although Scott

took a different approach, we do not think the California

Supreme Court was objectively unreasonable in resolving

Fauber’s claim like the majority of courts to have addressed

the question. See Hitchcock, 745 F.3d at 483 (“We agree

with the seven courts (we make it eight) on the majority side

of this issue and not with the Ninth Circuit.”). Under

AEDPA—and until the Supreme Court speaks more

specifically on this issue—we cannot say these many other

courts were so obviously mistaken. For these same reasons,

the dissent’s attempt to discern clearly established law in

Fauber’s favor in the face of so much contrary precedent

does not withstand scrutiny.

3

Finally, we note that the California Supreme Court

offered a related rationale for holding that the trial court was

not required to allow in evidence of Fauber’s unaccepted

plea: it would require ancillary evidentiary proceedings into

“the underlying reasons” for the plea offer and its rejection,

42 FAUBER V. DAVIS

which “had the potential to mislead and confuse the jury.”

Fauber, 831 P.2d at 288. On the facts of this case, that

reasoning reflected a valid concern, and certainly was not

contrary to or an unreasonable application of clearly

established Supreme Court precedent. Indeed, the Supreme

Court has recognized that even under Lockett and its

progeny, evidence can be excluded based on state courts’

“evenhanded application” of their evidentiary rules, Skipper,

476 U.S. at 6, which could include, in appropriate cases, the

usual rules associated with balancing undue prejudice, jury

confusion, and consumption of time against possible

probative value, see Fauber, 831 P.2d at 287–88 (citing Cal.

Evid. Code § 352).

These considerations were relevant here. When Fauber

sought to have the unaccepted plea introduced, the

prosecution asked for “a hearing with witnesses to actually

establish the foundational basis” for the submission. The

prosecutor explained that he had gone back through his files

and located a letter showing that it was Fauber and his

counsel who initially proposed a plea arrangement, but that

Fauber then “got cold feet”—not because of loyalty towards

his friends but “because he didn’t want to plead to something

that was going to put him in prison for the rest of his life.”

The prosecutor further argued that if the trial court were

considering allowing the plea offer into evidence, the

prosecution would want to show that the offer was based on

the State’s knowledge of the facts when the offer was made,

but that the record had “changed dramatically” since that

time (with the implication that a plea offer was no longer

appropriate). To explore these various issues, the State

believed that the prosecutor, defense counsel, and Fauber

may all need to testify. It is not apparent Fauber was willing

FAUBER V. DAVIS 43

to do so, which would have likely opened the door to

potentially damaging cross-examination. 4

In whichever way the proceedings would have unfolded

in the trial court, it is apparent that introducing Fauber’s

unaccepted plea and his rejection of it was no

straightforward evidentiary matter. That only contributes to

our conclusion that the state court’s rejection of Fauber’s

Lockett argument—a ruling that was broadly consistent with

almost all case law on this issue—was not objectively

unreasonable.

D

Even if the trial court’s exclusion of the plea offer

violated clearly established federal law, there is no basis to

conclude that the result of the penalty phase would have been

any different had the jury learned of the plea offer and

Fauber’s rejection of it. The California Supreme Court did

not rule on this basis, and Fauber thus argues that AEDPA

does not apply. The State does not respond on this point,

and so we will evaluate this issue without AEDPA’s

deferential posture. The standard of review is ultimately

immaterial, however, because the exclusion of the plea offer

did not have a “substantial and injurious effect or influence”

on the jury’s decision. Brecht, 507 U.S. at 637.

4

The dissent errs in claiming we have “vastly overstate[d] the

complications that might have arisen from admitting the plea offer

evidence in this case.” Setting aside the fact that Fauber hardly presented

his arguments to the state court in the nuanced way that the dissent now

does, there is no basis for the dissent’s assumption that the only evidence

relevant to the State’s initial plea offer would come from the prosecutor.

Indeed, as we have noted, the prosecutor explained that it was Fauber

and his attorney who had originally proposed the plea deal.

44 FAUBER V. DAVIS

We will assume for purposes of our analysis here that

Fauber could have used the unaccepted plea agreement to the

maximum mitigating effect he claims. For reasons we have

already discussed, it is doubtful this assumption is

warranted: the prosecution was evidently poised to provide

testimony about the circumstances surrounding Fauber’s

rejection of the plea agreement and how circumstances had

changed since the State first discussed a plea offer with him.

It seems entirely possible that introduction of the plea

agreement could have been unhelpful to Fauber, or at the

very least a mixed bag. But again, we will assume otherwise.

An error is harmless in this context when “there is

overwhelming evidence of aggravating circumstances and

[the] proffered mitigation evidence is limited or relatively

minor.” Djerf v. Ryan, 931 F.3d 870, 886 (9th Cir. 2019)

(quotations omitted). Similarly, exclusion of evidence can

be harmless when, in light of the mitigating evidence that

was presented, the excluded evidence “would not have

affected the balance of mitigating against aggravating

circumstances.” Runningeagle v. Ryan, 825 F.3d 970, 985

(9th Cir. 2016). All of this is true here.

As an initial matter, the State presented highly

compelling aggravating circumstances. First and foremost,

the jury had already heard overwhelming evidence of

Fauber’s depraved ax-murder killing of Urell, a man he had

never met before. Fauber murdered Urell only to avoid

being implicated in the burglary of Urell’s home. And

Fauber went through with the murder despite the victim

being tied up and defenseless. Even after striking Urell

multiple times and reducing his breathing to labored hissing

and later silence, Fauber returned to Urell’s room and struck

him with the ax again. The highly disturbing autopsy

results—which demonstrated that Fauber had broken Urell’s

FAUBER V. DAVIS 45

neck and ruptured tough neck ligaments with the blunt side

of an ax—underscored the barbarity of the crime and the

decidedness of Fauber’s actions. The dissent’s effort to

minimize Fauber’s crime as “not especially cruel or heinous”

is thus unfounded. Indeed, the circumstances of Fauber’s

murder of Urell was “[t]he very first factor” in aggravation

that the prosecution asked the jury to consider.

At the penalty phase, the State also demonstrated that

Fauber had murdered two other people less than three

months before killing Urell. Evidence that a capital

defendant “had committed another murder” is “the most

powerful imaginable aggravating evidence.” Wong,

558 U.S. at 28 (quotations omitted). And, in this case, the

State demonstrated that Fauber murdered not only multiple

times but for varied reasons. The Urell murder showed

Fauber’s capacity for homicide during a violent felony. The

circumstances surrounding Fauber’s murders of David

Church and Jack Dowdy, Jr., meanwhile, confirmed

Fauber’s propensity for nearly spontaneous acts of extreme

violence (Church) as well as targeted, vendetta-style killing

(Dowdy).

In the Church murder, Fauber participated in the slaying

of an acquaintance merely to prevent the partygoer from

reporting Fauber’s drug use to the police. As with Urell,

Fauber hit Church with an ax handle, commenting to

Buckley that Church “was a hard guy to kill.”

The Dowdy murder was uniquely alarming for its own

reasons, given the series of violent events surrounding

Dowdy’s death. The victim was one of Fauber’s longtime

friends. Fauber, 831 P.2d at 276. Yet, Fauber repeatedly

terrorized his wife and her family because he was

romantically interested in her. Id. At different points,

Fauber pulled a gun on Dowdy, held Kim at gunpoint

46 FAUBER V. DAVIS

because she had hugged a friend, and threatened to “knock

her off.” Id at 276–79. One night, Kim woke up and found

that Fauber had broken in and was attempting to strangle her.

Id. Fauber admitted to multiple witnesses—Buckley, Kim’s

uncle, and Kim herself—that he killed Jack, whom he

believed was preventing him from having a relationship with

Kim. Id. at 279. After the murder, Fauber’s violent conduct

continued. He appeared at Kim’s grandmother’s home and

ordered Kim to come with him at knifepoint or he would kill

everyone in the house. Id. When later confronted by Kim’s

family, Fauber expressed no remorse. Id. 5

Fauber’s plea agreement and his rejection of it paled in

comparison to the extensive aggravating evidence of

Fauber’s three murders and other violent actions. 6 But the

unaccepted plea would have also added little to the robust

case of mitigation that defense counsel put on. Cf. Fauber,

831 P.2d at 297 (Mosk, J., concurring) (explaining that the

plea agreement “would have had added little, if anything, of

marginal value”). In a substantially comprehensive

5

The dissent attempts to minimize the aggravating evidence of

Fauber killing Dowdy and Church on the theory that this evidence was

relevant “primarily because [it] bore on Fauber’s future dangerousness,”

and that if Fauber’s unaccepted plea agreement had been introduced, the

prosecution “might have decided to avoid making a future dangerousness

argument altogether.” But there is no basis for the dissent’s speculation

on this point. And regardless, the evidence of Fauber killing Dowdy and

Church was highly relevant to Fauber’s reprehensibility, in addition to

his future dangerousness.

6

Fauber argues that the jury struggled to reach a decision at the

penalty phase because it submitted a note during deliberations that

stated: “If the jury is hung as to the decision, does the life without

possibility of parole prevail or does the penalty phase go over again?”

But the reason and context for this note is unclear and it cannot overcome

the clear import of the record evidence we have discussed above.

FAUBER V. DAVIS 47

mitigation portrait, Fauber’s counsel presented evidence of

Fauber’s troubled childhood, positive qualities, and possible

mental instability. Several of Fauber’s siblings and friends

testified about his unfortunate upbringing, including his

dysfunctional family life and the decrepit conditions of his

childhood home. They told the jury that Fauber was the

youngest of eleven children, only seven of whom survived

to adulthood. Fauber’s father was an unemployed alcoholic

who was verbally abusive and disciplined the children with

razor straps, belts, and buckles. Fauber did not finish high

school. As a teenager, he was involved in a motorcycle

accident that killed one of his brothers.

Counsel also presented two experts who testified about

Fauber’s background. Dr. Isabel Wright, Ph.D., conducted

an eight-month investigation into Fauber’s life. She testified

based on her travels to Fauber’s hometown and her

interviews of his neighbors, the school nurse, a Sunday

school teacher, a high school vice principal, a special

education worker, two counselors, truant and welfare

officers, and Fauber’s friends, family, and acquaintances.

Dr. Edward Grover, a psychologist, examined and ran tests

on Fauber. Dr. Grover told the jury that Fauber had average

intelligence and a possible organic brain deficit. Dr. Grover

also informed the jury that Fauber “had impaired

interpersonal skills and some difficulty keeping reality and

fantasy separated.” Fauber’s friends testified that he was a

good and caring person.

Although Fauber’s mitigation presentation did not

convince the jury, it was not without force. And the

mitigating evidence that defense counsel did put on was far

more powerful and probative of Fauber’s character and

culpability than the plea deal. We do not mean to suggest,

as the dissent claims, that Fauber’s mitigating evidence was

48 FAUBER V. DAVIS

“persuasive.” Given Fauber’s penchant for ax-murder and

violent assault, the aggravating factors here substantially

outweighed the mitigating evidence that Fauber put forward.

Instead, our point is that Fauber’s mitigation presentation

confirms that he put forward witnesses and experts who

could shed light on his character and culpability in a way that

the State’s plea offer could not. Therefore, there is no reason

to believe, as the dissent maintains, that evidence of the plea

offer was “likely to tip the scales in favor of a life sentence.”

In short, we conclude that any error in the refusal to

admit the plea offer was harmless. See Scott (Roger) v.

Ryan, 686 F.3d 1130, 1135 (9th Cir. 2012) (holding that

“[e]ven considering the totality of mitigation evidence that

Scott introduced at the district court on remand,” including

“evidence that the State once offered him a plea bargain,”

“we cannot say it would have made any difference in the

outcome”).

* * *

For the foregoing reasons, the judgment of the district

court is AFFIRMED.

WATFORD, Circuit Judge, dissenting in part:

Before Curtis Fauber was tried for capital murder, the

Ventura County District Attorney’s office offered him a plea

deal under which Fauber would be sentenced to life in prison

without the possibility of parole, provided that he testified

against co-conspirators Brian Buckley and Chris Caldwell.

Fauber turned the offer down, went to trial, and was

convicted. At the penalty phase of his trial, Fauber sought

to introduce evidence of the plea offer to show that the

FAUBER V. DAVIS 49

District Attorney’s office did not believe the death penalty

was required in his case. The trial court excluded the

evidence on the ground that it had minimal relevance and

posed a substantial risk of misleading the jury and

prolonging the trial. During the penalty phase, the

prosecutor argued that Fauber must be executed because he

was likely to kill again if sentenced to life in prison. Due to

the trial court’s ruling, Fauber could not rebut this claim by

pointing to the District Attorney’s prior offer of a plea deal

with a life sentence. This exclusion of relevant mitigating

evidence violated clearly established federal law, and the

error was not harmless. I would therefore grant Fauber’s

habeas petition as to the exclusion of the plea offer at the

penalty phase. 1

I

Before the start of the penalty phase, the prosecutor filed

a motion in limine seeking to exclude any evidence related

to the plea offer. In response, Fauber argued that the offer

was relevant mitigating evidence that must be admitted

under Lockett v. Ohio, 438 U.S. 586 (1978). He asserted two

distinct theories of relevance: (1) the plea offer reflected the

District Attorney’s assessment of Fauber’s character and the

circumstances of his offense; and (2) Fauber’s rejection of

the plea offer showed the positive character trait of loyalty

to his friends.

The state trial court dismissed the first theory out of

hand, declaring that the offer itself was “totally irrelevant.”

1

I agree with the majority that Fauber is not entitled to relief on his

ineffective assistance and due process vouching claims. Accordingly, I

would not grant Fauber’s habeas petition with respect to the guilt phase

of his trial.

50 FAUBER V. DAVIS

The court gave greater consideration to the second theory but

ultimately ruled that Fauber’s rejection of the plea offer was

inadmissible under California Evidence Code § 352, which

permits the exclusion of evidence when its probative value

is substantially outweighed by the risk of delay, unfair

prejudice, confusing the issues, or misleading the jury. In

the court’s view, this evidence could be admitted only if

Fauber testified about his reasons for rejecting the offer,

which would permit the prosecutor to explain his decision to

make the offer in the first place. The court concluded that a

mini-trial on the significance of Fauber’s rejection of the

plea offer risked confusing the issue and misleading the jury.

In both the California Supreme Court and his federal

habeas petition, Fauber continued to press both theories of

relevance. This appeal, however, involves only the first

theory: that the prosecutor’s offer of a plea deal for life in

prison reflected an assessment of Fauber’s character and the

circumstances of his offense. As the majority recognizes,

Fauber has refined his claim in presenting it to this court. He

contends that the plea offer is specifically relevant to rebut

the prosecutor’s claim that Fauber would pose a danger to

others if spared the death penalty. He is not arguing that plea

offers are categorically admissible under Lockett. Rather,

his contention is a more limited one—namely, that when a

prosecutor explicitly urges the jury to impose a death

sentence on the ground that the defendant will kill again if

sentenced to life in prison, Lockett and its progeny clearly

establish that plea offer evidence must be admitted to refute

that claim. Although this argument is more precise than the

one Fauber made in state court and before the federal district

court, I agree with the majority that we must consider it on

the merits.

FAUBER V. DAVIS 51

II

Under the provision of the Antiterrorism and Effective

Death Penalty Act (AEDPA) at issue here, a federal habeas

court may grant relief only if the state court’s decision was

contrary to or involved an unreasonable application of

clearly established federal law, as determined by the

Supreme Court. 28 U.S.C. § 2254(d)(1). As noted above,

the state trial court concluded that the plea offer itself—as

opposed to Fauber’s rejection of it—was entirely irrelevant.

The California Supreme Court affirmed the exclusion of the

plea offer evidence on direct appeal, finding “no violation of

constitutional guarantees.” People v. Fauber, 2 Cal. 4th 792,

856 (1992).

A

The Eighth and Fourteenth Amendments require that a

capital defendant be permitted to introduce any relevant

mitigating evidence during the penalty phase of his trial.

This principle, first articulated by a plurality of the Supreme

Court in Lockett, was clearly established by a majority of the

Court in Eddings v. Oklahoma, 455 U.S. 104, 110 (1982).

By the time of Fauber’s trial in 1987, the Court had also

clearly established that evidence showing that a defendant

would not pose a danger if spared the death penalty must be

admitted under Lockett. See Skipper v. South Carolina,

476 U.S. 1, 5 (1986). Here, the State’s plea offer was

evidence suggesting it had determined, at some point in the

case, that Fauber was not so likely to kill again that he must

be executed to prevent future violence.

The Supreme Court has held that the relevance of such

evidence is “underscored” when the State “specifically relies

on a prediction of future dangerousness in asking for the

death penalty.” Skipper, 476 U.S. at 5 n.1. In Skipper, the

52 FAUBER V. DAVIS

state court refused to admit evidence from which the jury

could infer that the defendant would not be violent in prison.

Id. at 3. With this ruling in hand, the prosecutor then argued

that the defendant would likely cause disciplinary problems

and rape other inmates if he were sentenced to life in prison.

Id. The Court held that the defendant’s evidence must be

deemed relevant and potentially mitigating and that its

exclusion violated Lockett. Id. at 5.

In Fauber’s case, the State’s prediction was even more

dire. During closing arguments, the prosecutor explicitly

told the jury that Fauber was “a man who, if given the

opportunity, will kill again.” Just as in Skipper, the

prosecutor argued that death was the only appropriate

penalty after successfully excluding evidence that would

have rebutted that very claim. And, as the Supreme Court

recognized in Skipper, the manifest unfairness of this tactic

confirms the relevance of the plea offer evidence.

The California Supreme Court concluded that Fauber’s

plea offer was not relevant mitigating evidence because the

offer was “susceptible of numerous inferences” and did not

unequivocally show that Fauber was not likely to be violent

in prison. 2 Cal. 4th at 857. As a factual matter, the court

was correct: The plea offer could have reflected an

assessment of Fauber’s future dangerousness, an attempt at

leniency, or the prosecutor’s reluctance to go to trial. But

the mere fact that a jury could draw different inferences from

a piece of evidence does not render it irrelevant. By the time

of Fauber’s direct appeal, the Supreme Court had clearly

established that evidence is relevant under Lockett whenever

it has “any tendency to make the existence of any fact that is

of consequence to the determination of the action more

probable or less probable than it would be without the

evidence.” McKoy v. North Carolina, 494 U.S. 433, 440

FAUBER V. DAVIS 53

(1990) (internal quotation marks omitted). The State’s

willingness to offer a plea deal with a life sentence made it

more probable that Fauber did not pose an unacceptably high

risk of killing again in prison. And the plea offer evidence

easily meets this low bar even if the offer was motivated

primarily by other considerations.

B

The State offers three reasons why we should reject this

conclusion and dismiss Fauber’s claim. None of them are

persuasive.

First, the State notes that Fauber cannot point to a

Supreme Court decision specifically holding that plea offers

are relevant mitigating evidence under Lockett. The

majority opinion relies heavily on this argument, warning

that we are not permitted to frame the Supreme Court’s

precedents at “a high level of generality.” Maj. op. at 36

(quoting Nevada v. Jackson, 569 U.S. 505, 512 (2013) (per

curiam)). But the Supreme Court has also instructed that

AEDPA’s demand for clearly established law can be

satisfied by a general standard; the statute “does not require

state and federal courts to wait for some nearly identical

factual pattern before a legal rule must be applied.” Panetti

v. Quarterman, 551 U.S. 930, 953 (2007) (internal quotation

marks omitted). This is particularly true when the Court has

adopted a broad rule—such as requiring the admission of

any relevant mitigating evidence—and there are potentially

infinite forms that such evidence could take. Here, Fauber

argues that evidence of a prior plea offer must be admitted

when the prosecutor relies on a prediction of future

dangerousness in arguing for the death penalty. He need not

identify a Supreme Court decision addressing this narrow

factual circumstance to prevail on his claim.

54 FAUBER V. DAVIS

The majority recites a long list of mitigators that the

Supreme Court has recognized under Lockett, pointing out

that it does not include plea offer evidence. Maj. op. at 37.

But the breadth of this list merely confirms that the Lockett

rule is expansive and should not be applied rigidly in the

AEDPA context. In fact, the only specific category of

potentially mitigating evidence that the Supreme Court has

held excludable under Lockett is evidence of “residual

doubt” as to the defendant’s guilt. Oregon v. Guzek,

546 U.S. 517, 523–27 (2006); see also Franklin v. Lynaugh,

487 U.S. 164, 172–73 (1988) (plurality opinion). As the

Court pointed out in Guzek, such evidence is logically

irrelevant to the sentencing-phase inquiry because the

defendant’s commission of the offense was already

conclusively determined at the guilt phase. 546 U.S. at 526.

The same cannot be said about the plea offer evidence in this

case.

Second, the State argues that the plea offer is irrelevant

because it represents only the opinion of the District

Attorney’s office. The State notes that a prosecutor is

categorically prohibited from expressing the alternative

view, that is, his personal belief that a defendant deserves the

death penalty. Hence, the State reasons, the prosecutor’s

contrary view must be legally irrelevant.

The State’s argument relies on a faulty premise. The rule

prohibiting prosecutors from offering their personal view of

a defendant’s guilt rests on principles of fairness, not

relevance. It was created to prevent prosecutors from

invoking their authority and credibility to sway juries and

obtain unreliable convictions, as both the Supreme Court and

our court have recognized. See Berger v. United States,

295 U.S. 78, 88 (1935); United States v. McKoy, 771 F.2d

1207, 1211–12 (9th Cir. 1985). We therefore cannot infer

FAUBER V. DAVIS 55

from the prohibition against expressing personal views of

guilt that the District Attorney’s assessment of a defendant’s

potential future dangerousness is irrelevant to the jury’s

decision. To the contrary, it is entirely reasonable for a jury

to expect that, when making charging decisions concerning

the death penalty, a prosecutor will take into account the risk

that a defendant will be violent in the future.

This is not to say that a plea offer must invariably be

admitted in any capital case to show in general terms that

“the prosecution believed that a death sentence was not

warranted.” Hitchcock v. Secretary, Florida Department of

Corrections, 745 F.3d 476, 480 (11th Cir. 2014). Here, the

offer was admissible for the specific purpose of showing the

District Attorney’s implicit evaluation of Fauber’s future

dangerousness. The prosecutor’s prediction that Fauber

would kill again if spared the death penalty put the issue

squarely before the jury, and Fauber was entitled to present

any relevant evidence that could rebut this argument.

Third, and finally, the State points out that other state and

federal courts have held that plea offers are not relevant

mitigating evidence. But only one of those cases addressed

the argument presented here—that a plea offer is admissible

to rebut a prosecutor’s claim of future dangerousness. In

Wright v. Bell, 619 F.3d 586 (6th Cir. 2010), the Sixth

Circuit rejected this argument, concluding that “nothing in

the alleged plea offer constitutes relevant evidence that

Wright would not pose a danger if given a life sentence.” Id.

at 601. Instead, a plea offer “might indicate only that the

state believed its important interests in judicial efficiency

and finality of judgments were sufficient to outweigh any

potential risk associated with a life sentence, not that those

risks did not exist.” Id. Like the California Supreme Court

in Fauber’s case, the Sixth Circuit erroneously concluded

56 FAUBER V. DAVIS

that a piece of evidence is irrelevant simply because it is

susceptible to multiple inferences. As discussed above, this

reasoning is in clear conflict with the expansive definition of

relevance that the Supreme Court established in McKoy. See

494 U.S. at 440.

In the two other federal circuit court decisions to address

the admissibility of plea offers under Lockett, the defendants

argued that the offers demonstrated the prosecutor’s belief

that their crimes did not deserve the death penalty, but they

could not offer any more specific reason why the plea offers

were relevant. See Hitchcock, 745 F.3d at 480; Owens v.

Guida, 549 F.3d 399, 420 (6th Cir. 2008). Thus, we should

not be surprised that the Hitchcock court saw no mitigating

value in the mere fact that the defendant “would not have

received a death sentence if only he had accepted the plea

offer.” 745 F.3d at 482. And even in that case, one judge

cautioned against overreading the majority opinion. See id.

at 488 (Wilson, J., concurring in the judgment) (“[E]ven if

the Majority is correct about the irrelevance of plea

negotiations in this case, such negotiations may be relevant

for a host of other reasons that should be evaluated as they

arise.”). In Owens, the Sixth Circuit relied on the same

flawed reasoning that appeared in Wright, holding that the

plea offer was inadmissible because the record did not show

whether the offer reflected a judgment that the defendant did

not deserve death or, instead, merely a desire to conserve

prosecutorial resources. 549 F.3d at 420.

The issue of future dangerousness appeared in only two

of the cited state court decisions, and never in the context of

a Lockett claim. In one case, the defendant argued that the

prosecutor’s prediction of future dangerousness amounted to

misconduct. See Wisehart v. State, 693 N.E.2d 23, 60 (Ind.

1998). The other involved a challenge to the evidence

FAUBER V. DAVIS 57

supporting the aggravating circumstance that the defendant

constituted a continuing threat to society. See Ross v. State,

717 P.2d 117, 123 (Okla. Crim. App. 1986). In each case,

the court’s brief discussion of the plea offer evidence did not

address whether the offer might have been relevant to rebut

the prosecutor’s future dangerousness argument. See id.

at 122; Wisehart, 693 N.E.2d at 64.

The majority opinion contends that the exclusion of the

plea offer evidence was a permissible application of

California Evidence Code § 352. It suggests that admitting

the evidence would have required testimony from the

prosecutor, the defense attorney, and Fauber, and that these

ancillary proceedings might have confused or misled the

jury. Maj. op. 41–42.

I agree with the majority that Lockett does not prevent

States from applying rules such as California Evidence Code

§ 352 during penalty-phase proceedings, but the majority

vastly overstates the complications that might have arisen

from admitting the plea offer evidence in this case. Recall

that Fauber argued in the state trial court that both the plea

offer itself and his rejection of it were relevant. Testimony

from Fauber or his attorney would have been required only

if the jury needed to know Fauber’s reasons for rejecting the

offer. The claim at issue in this appeal depends entirely on

the prosecutor’s decision to make the offer. The only

additional evidence required would be testimony regarding

his reasons for making the offer and later seeking the death

penalty. As discussed further below, the plea offer evidence

has significant probative value, and the California Supreme

Court could not reasonably have determined that its value

was substantially outweighed by the risk of confusion from

the prosecutor’s limited testimony.

58 FAUBER V. DAVIS

III

If a petitioner establishes that the state court

unreasonably applied clearly established federal law, a

federal habeas court must determine whether the error was

harmless. When the state court has not considered the

harmlessness issue, AEDPA’s deferential standard of review

does not apply. Instead, the petitioner is entitled to relief if

he can show that the exclusion had a “substantial and

injurious effect or influence” on the jury’s verdict. Brecht v.

Abrahamson, 507 U.S. 619, 623 (1993). Because the

California Supreme Court found no error in the exclusion of

the plea offer evidence, it did not consider whether the error

was harmless. Thus, only the Brecht standard applies to

Fauber’s claim. I would hold that the exclusion of the plea

offer had a substantial and injurious effect on the jury’s

verdict and that Fauber is therefore entitled to relief.

The prosecutor’s prediction that Fauber would kill again

likely played a critical role in the jury’s decision to impose

the death penalty. Empirical research has shown that

“[f]uture dangerousness appears to be one of the primary

determinants of capital-sentencing outcomes.” Stephen P.

Garvey, Aggravation and Mitigation in Capital Cases: What

Do Jurors Think?, 98 Colum. L. Rev. 1538, 1559–60 (1998).

The majority places substantial weight on the other killings

that the government sought to prove during the penalty

phase. Maj. op. at 45–46. But those acts of violence—to the

extent they were in fact proved—were relevant primarily

because they bore on Fauber’s future dangerousness. The

prosecutor argued that Fauber had killed three people in as

many months during the summer of 1986 and, in his closing

argument, asked the jury to infer that Fauber would do so

again. The plea offer evidence would have blunted this

future dangerousness argument by suggesting that the

FAUBER V. DAVIS 59

District Attorney’s office did not believe Fauber actually

posed so great a risk of future violence.

At a hearing outside the presence of the jury, the

prosecutor explained that, at the time he made the offer to

Fauber, the District Attorney’s office did not have enough

evidence to convict Buckley and Rowan. The prosecutor

evidently believed that the benefit of securing Fauber’s

testimony against his co-conspirators outweighed the risk

that Fauber would kill again. Presumably, the trial judge

would have permitted the prosecutor to testify or introduce

evidence of this calculus, and the jury could have decided

how much weight to give to the plea offer. The prosecutor,

at least, believed that the evidence would have damaged his

case, as he repeatedly told the judge that it was “extremely

prejudicial.” The prosecutor was particularly concerned

about appearing to be a hypocrite in front of the jury, and he

might have decided to avoid making a future dangerousness

argument altogether. Without that argument, the evidence

related to the Church murder and the Dowdy disappearance

loses much of its force. 2

The remainder of the State’s case in aggravation was far

from overwhelming. The circumstances of the Urell murder

did not make Fauber’s case an obvious candidate for the

2

Although the majority purports to give the plea offer evidence the

full mitigating value that Fauber claims, it suggests that introduction of

the plea offer evidence might have actually harmed Fauber’s case

because it would have exposed him to damaging cross-examination.

Maj. op. 42–43. In doing so, the majority conflates the two theories of

relevance that Fauber put forward before the trial court. This appeal

involves only the claim that the plea offer itself, rather than Fauber’s

rejection of it, was relevant admissible evidence. Thus, there would be

no need for Fauber to testify as to his reasons for rejecting the offer and

no risk of cross-examination.

60 FAUBER V. DAVIS

death penalty. Fauber’s actions did not risk harming anyone

other than his intended victim, and the crime, while violent,

was not especially cruel or heinous. In fact, Urell’s killing

occupied only 11 transcript pages of the prosecutor’s 64-

page closing argument during the penalty phase.

On the other side of the equation, the State and the

majority acknowledge that Fauber put on a robust case in

mitigation. Maj. op. at 47–48. His trial counsel called three

experts and over twenty character witnesses, many of whom

testified to Fauber’s good character and stated that they

would stand by him even after his conviction. The majority

contends that, because this mitigating evidence was so

persuasive, the plea offer evidence was unlikely to have

made a difference. The majority has it backwards: The

strength of Fauber’s case in mitigation supports his argument

that exclusion of the plea offer evidence was prejudicial. If

the balance between aggravating and mitigating factors was

already close in the minds of the jurors, the addition of the

plea offer evidence was more likely to tip the scales in favor

of a life sentence. 3

* * *

The California Supreme Court’s decision affirming the

exclusion of Fauber’s plea offer evidence during the penalty

phase involved an unreasonable application of clearly

established federal law, and the error was not harmless under

Brecht. Accordingly, I would reverse the district court’s

3

In fact, we have direct evidence from the jury that this case was a

close call. During penalty-phase deliberations, the jurors submitted a

note asking whether, if the jury hung, the penalty phase would be

repeated or Fauber would instead receive a sentence of life in prison. At

the very least, this evidence suggests that the jury was not immediately

unanimous in its decision to impose the death penalty.

FAUBER V. DAVIS 61

decision in part and grant Fauber’s habeas petition as to his

death sentence.