Blufford Hayes, Jr. v. Jeanne Woodford

THOMAS, Circuit Judge,

concurring in part and dissenting in part:

The prosecution’s knowing presentation of false testimony, its failure to disclose exculpatory material to the defendant, and penalty phase ineffective assistance of defense counsel require reversal. Thus, I must respectfully dissent from Sections III, IV and V of the majority opinion and the judgment. In all other respects, I concur.

I

One of the bedrock principles of our democracy, “implicit in any concept of ordered liberty,” is that the government may not use false evidence to obtain a criminal conviction. Napue v. Illinois, 360 U.S. 264, 269 , 79 S.Ct. 1173 , 3 L.Ed.2d 1217 (1959). Deliberate deception of a judge and jury is “inconsistent with the rudimen *1089 tary demands of justice.” Mooney v. Holohan, 294 U.S. 103, 112 , 55 S.Ct. 340 , 79 L.Ed. 791 (1935). Thus, “a conviction obtained though use of false evidence, known to be such by representatives of the State, must fall under the Fourteenth Amendment.” Napue, 360 U.S. at 269 . 1 “Indeed, if it is established that the government knowingly permitted the introduction of false testimony reversal is ‘virtually automatic.’” United States v. Wallach, 935 F.2d 445, 456 (2d Cir.1991) (quoting United States v. Stofsky, 527 F.2d 237, 243 (2d Cir.1975)).

In this case, the government knowingly presented false evidence to the jury and made false representations to the trial judge as to whether the government had agreed not to prosecute a key witness, Andrew “A.J.” James. Prior to trial, the prosecutor had reached an agreement with James’ attorney as to future prosecution of charges against James and, in fact, after the jury had returned a death verdict, all felony charges against James were dismissed.

At trial, the government deliberately painted a completely different picture. First, the government misled the trial judge. In preliminary proceedings, defense counsel inquired “whether any negotiated settlement has been made in return for his [James’] testimony.” To that, the prosecutor responded:

There has been absolutely no negotiations whatsoever in regard to his testimony. No promises, no discussions about this other offense at all.

Upon further inquiry by the trial judge about “whether there has been any negotiations,” the prosecutor replied:

That was asked of Mr. James at the time of the preliminary examination and he testified that there had been absolutely no promises and no discussions in regard to any pending charges and that is the status of the case. There has been no discussions in regard to any pending charges.

When James testified, the prosecutor elicited the following testimony:

Q. All right. Other than these things that you have told us about, have you been made any promises? Have you been offered anything? Has any pressure been put on you? Has anything been done to make you testify here?

A. No.

After defense counsel probed in cross-examination the lack of activity in prosecuting James, the prosecutor elicited the following testimony on redirect from James:

Q. You and I have discussed the fact that you have other charges pending; isn’t that correct?

A. Right.

Q. Okay. And you would tell the jury what if anything of any deals or any promises or anything else has been made in regards to this charge?

A. No. There are still pending, you know.... You know, I didn’t get no— you know, like they try to make it sound like a deal or something. It wasn’t like that, man. I just don’t want no involvement, you know.

In closing, the prosecutor emphasized the truthfulness of the government’s witnesses, stating:

The implication is that somehow all the prosecution’s witnesses are lying and the only person that is telling the truth in this case is the defendant. I ask you, is that reasonable? Is that the sort of *1090 reason the Court is asking you to use when it tells you that you must use the standard of reasonable doubt in this case? That somehow everybody is lying, but the defendant?

That’s not the reason and that’s not the standard of proof in this case. Andrew James may be a very bad man, he may have a bad past, he is not a murderer as the defendant is in this case.

Under Napue , constitutional error occurs when (1). the presented evidence was false; (2) prosecution knew or should have known the evidence was false; and (3) the evidence was material. See Napue, 360 U.S. at 269-71 .

There is little doubt that the evidence presented to the jury was false, and that the prosecution knew or should have known the evidence was false. James’ attorney testified that there was a deal, and the district court found that:

It is undisputed that James was never prosecuted. Aso, the court finds that the prosecutor [ ] tacitly admitted in an evidentiary hearing in another case that he had made some type of agreement with James’ lawyer for the 1980 arrests at or about the time that James appears at his arraignment.

Thus, the sole question is whether the presentation of the false evidence was material. “Because the use of known lies to get a conviction deprives a defendant of his constitutional right to due process of law,” we are required to reverse a conviction obtained through those means unless the error was “ ‘harmless beyond a reasonable doubt.’” United States v. LaPage, 231 F.3d 488, 491 (9th Cir.2000) (citing United States v. Bagley, 473 U.S. 667 , 679 n. 9, 105 S.Ct. 3375 , 87 L.Ed.2d 481 (1985)). “That is, we must reverse ‘if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.’” LaPage, 231 F.3d at 491 (citing Bagley, 473 U.S. 667 at 679 n. 9, 105 S.Ct. 3375 , 87 L.Ed.2d 481 , quoting United States v. Agurs, 427 U.S. 97, 103 , 96 S.Ct. 2392 , 49 L.Ed.2d 342 (1976)).

By any measure, James was a key witness. There is little doubt that James’ testimony was the centerpiece of the prosecution’s case. Virtually all of the other evidence against Hayes was circumstantial. James was the only witness who testified that Hayes confessed to the murder and the robbery. The importance of this testimony cannot be understated. As the Supreme Court has observed:

A confession is like no other evidence. Indeed, “the defendant’s own confession is probably the most probative and damaging evidence that can be admitted against him.... ”

Arizona v. Fulminante, 499 U.S. 279, 296 , 111 S.Ct. 1246 , 113 L.Ed.2d 302 (1991) (quoting Bruton v. United States, 391 U.S. 123, 139-40 , 88 S.Ct. 1620 , 20 L.Ed.2d 476 (1968) (White, J., dissenting)).

James’ testimony was critical to the death-qualifying special circumstance, namely whether the murder was committed in furtherance of a robbery. James testified that he went directly to his car without going to the office, that he did not participate in the burglary and that the stolen property had already been placed in the car by Hayes. Hayes testified that he told James that he had killed Patel, that James went to investigate, and that Hayes next saw James burglarizing the office. Hayes’ version of events was corroborated by another occupant of the motel, Bearla May Wyatt, who testified that she saw James carrying things to Hayes’ car, “like he was moving out of an apartment.” This was a critical distinction because, under applicable California law, Hayes could be convicted of the special circumstance only if he formed the intent to burglarize or rob before striking the fatal blow. The only witness other than James who testified *1091 that Hayes said he had burglarized the office was James’ girlfriend, Michele Ge-bert, who provided her version of events only after she and James had discussed it for many hours, deciding what to do. Thus, given all of the circumstances, it cannot be said that the introduction of false testimony was harmless beyond a reasonable doubt.

The defense theory in closing is that James did the burglarizing. As defense counsel put it: “In this case, you can only conclude that Blufford committed a robbery or a burglary if you believe Andrew James beyond a reasonable doubt.” In sum, James’ testimony and credibility were crucial to the state’s case.

The fact that the false evidence presented by the government dealt only with credibility does not change the materiality calculus. Noting that “[i]t is of no consequence that the falsehood bore upon the witness’ credibility rather than directly upon defendant’s guilt,” the Supreme Court noted in Napue that:

The principle that a State may not knowingly use false evidence, including false testimony, to obtain a tainted conviction, implicit in any concept of ordered liberty, to obtain a tainted conviction, does not cease to apply merely because the false testimony goes only to the credibility of the witness. The jury’s estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence, and it upon such subtle factors as the possible interest of the witness in testifying falsely that a defendant’s life or liberty may depend.

360 U.S. at 269 .

Similarly, in Giglio v. United States, 405 U.S. 150 , 92 S.Ct. 763 , 31 L.Ed.2d 104 (1972), the Supreme Court reversed a conviction for Mooney/Napue error because the government had failed to disclose a promise made to its key witness that he would not be prosecuted if he testified for the government. Id. at 154-55 , 92 S.Ct. 763 .

Nor does it matter that James was subject to impeachment on the basis of his transactional immunity, drug addiction and criminal record. As the Supreme Court noted in Napue :

[W]e do not believe that the fact that the jury was apprised of other grounds for believing that the witness [ ] may have had an interest in testifying against petitioner turned what was otherwise a tainted trial into a fair one.

360 U.S. at 270 .

The government argues that the witness James did not know that there was a deal; therefore, the witness did not commit perjury. This contrivance was not accidental. James’ attorney wrote in his notes of the conversation about the deal:

THIS IS SECRET INFO!! Don’t tell the client, or let the word out, or this guy will be a goner!!

In short, the state contends that no technical perjury occurred; therefore, Na-pue is not implicated. This argument plainly misapprehends the import of Mooney, Napue, and their progeny. It is the presentation of false evidence by the state that offends the constitution, not merely subornation of perjury. Napue, 360 U.S. at 269 (“[A] State may not knowingly use false evidence, including false testimony, to obtain a tainted conviction.... ”); Phillips v. Woodford, 267 F.3d 966, 984-85 (9th Cir.2001) (“It is well settled that the presentation of false evidence violates due process.”) (citing Napue, 360 U.S. at 269 ). If the state knows that evidence is false and allows its presentation to the jury, the trial has been infected with constitutional error regardless of the witness’s state of mind.

*1092 We have previously repudiated such contrivances. See id.; Willhoite v. Vasquez, 921 F.2d 247, 251-52 (Trott, J., concurring) (calling such tactics a “pernicious scheme without any redeeming features.”)- As we recently said in Commonwealth of N. Mariana Islands v. Bowie, 236 F.3d 1083, 1087 (9th Cir.2001): “Few things are more repugnant to the constitutional expectations of our criminal system than covert perjury....” Thus, the state’s claim of absolution based on insulating the witness from the truth is, to say the least, unavailing.

As Judge Trott wrote in Bowie :

The authentic majesty in our Constitution derives in large measure from the rule of law — principle and process instead of person. Conceived in the shadow of an abusive and unanswerable tyrant who rejected all authority save his own, our ancestors wisely birthed a government not of leaders, but of servants of the law. Nowhere in the Constitution or in the Declaration of Independence, nor for that matter in the Federalist or in any other writing of the Founding Fathers, can one find a single utterance that could justify a decision by any oath-beholden servant of the law to look the other way when confronted by the real possibility of being complicit in the wrongful use of false evidence to secure a conviction in court.

Id.

In this case, if petitioner’s allegations are proven, the government knowingly presented false evidence to bolster the credibility of a material witness. Thus, I would reverse to grant an evidentiary hearing on this issue. 2

II

For the same reason, I would also reverse because of the state’s failure to comply with the requirements of Brady v. Maryland, 373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963), in disclosing the negotiated deal with witness James to the defense. “Our cases confirm that the suppression of material impeachment evidence, particularly for key state witnesses, may require the reversal of a conviction or the vacating of a sentence.” Silva v. Woodford, 279 F.3d 825, 854 (9th Cir.2002). The information suppressed by the government was key, material impeachment evidence. I would grant an evidentiary hearing on the defendant’s Brady claim.

III

I would also grant an evidentiary hearing on whether Hayes was denied penalty phase effective assistance of counsel. This case comes to us in an unusual procedural posture. Hayes was not afforded an evi-dentiary hearing in state court in post-conviction proceedings. After the federal habeas petition was filed, the magistrate judge precluded Hayes from commencing discovery or making requests for investigative funds. The judge ordered the state to file a summary judgment motion with respect to those issues that could be decided as a matter of law. The state moved for “summary dismissal” of all claims in the complaint. The magistrate judge treated the motion as one for summary judgment, and granted summary judgment on 61 of the 63 claims. The magistrate judge held an evidentiary hearing on *1093 Hayes’ claims for relief based on (1) ineffective assistance of counsel in handling a plea bar-gain offer and (2) Hayes’ absence during the entire penalty phase of the trial. No evidentiary hearing was conducted on Hayes’ claim for ineffective assistance of counsel during the penalty phase, nor was Hayes permitted any discovery on the issue. Hayes was denied any use of investigative funds to develop the claim.

“To obtain an evidentiary hearing on an ineffective assistance of counsel claim, a habeas petitioner must establish that (1) his allegations, if proven, would constitute a colorable claim, thereby entitling him to relief and (2) the state court trier of fact has not, after a full and fair hearing, reliably found the relevant facts.” Correll v. Stewart, 137 F.3d 1404, 1411 (9th Cir.1998). There was no state evidentiary hearing on the issue, so the only issue is whether Hayes has alleged a colorable claim of ineffective assistance of counsel. As to pre-AEDPA claims, which these are, “a district court must grant a hearing to determine the validity of a petition brought under that section, ‘[ujnless the motions and the files and records of the case conclusively show that the prisoner is entitled to no relief.’” Turner v. Calderon, 281 F.3d 851, 890 (9th Cir.2002) (quoting United States v. Blaylock, 20 F.3d 1458, 1465 (1994)).

Hayes alleges that his attorney did not conduct any investigation of potentially mitigating evidence and failed to present mitigating evidence during the penalty phase, which lasted only 23 minutes.

Hayes has alleged not only a colorable, but a classic case of penalty phase ineffective assistance of counsel. He alleges that his attorney failed to conduct any investigation of potentially mitigating evidence, including mental health problems, drug and alcohol abuse and addiction, and family history. Hayes contends his attorney neglected to develop and present any expert testimony in mitigation. These are paradigmatic, penalty phase ineffective assistance claims, ones upon which we have granted relief many times in the past. 3 Hayes was clearly entitled to discovery, investigative funds and an evidentiary hearing on the claim.

The United States Supreme Court has emphasized that “counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” Strickland v. Washington, 466 U.S. 668, 691 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984); see also Williams v. Taylor, 529 U.S. 362, 395 , 120 S.Ct. 1495 , 146 L.Ed.2d 389 (2000). In a capital trial, “[i]t is imperative that all relevant mitigating information be unearthed for consideration at the capital sentencing phase.” Wallace v. Stewart, 184 F.3d 1112, 1117 (9th Cir.1999) (quoting Caro v. Calderon, 165 F.3d 1223 (9th Cir.1999)). “To perform effectively in the penalty phase of a capital case, counsel must conduct sufficient investigation and engage in sufficient preparation to be able to ‘present! ] and explain! ] the significance of all the available [mitigating] evidence.’” *1094 Mayfield, 270 F.3d at 927(quoting Williams, 529 U.S. at 393 ).

In this case, there was ample evidence in the record that Hayes suffered from long standing drug and alcohol addiction, that his behavior became violent when he was under the influence of drugs and alcohol and that he had a troubled childhood. Defense counsel had been advised that Hayes suffered from Ritalin delirium disorder. Hayes refused to attend the penalty phase of the trial because, unmedicated, he believed he was unable to control himself. There is no evidence in the record that defense counsel did any investigation of these potentially mitigating facts, nor did he develop the expert testimony on mental health which was available to him. Under our long standing prior precedent, 4 these allegations were sufficient to entitle Hayes to discovery, investigative funds and an evidentiary hearing.

The magistrate judge granted summary judgment based on his inferences about the strategy of defense counsel. 5 However, this turns the law of summary judgment inferences on its head. On summary judgment, the non-moving party is entitled to have all inferences drawn in his favor. It may well be that defense counsel’s strategy was strategic. However, absent an evidentiary hearing, we cannot reach that conclusion. Siripongs v. Calderon, 35 F.3d 1308, 1314 (9th Cir.1994) (“[WJithout the benefit of an evidentiary hearing ... [w]e cannot determine if counsel’s decision was a strategic one, and if so, whether the decision was a sufficiently informed one.”) (second alteration in original) (quoting Hendricks, 974 F.2d at 1109). Further, Hayes’ claim is that his counsel failed to investigate potentially mitigating evidence. Absent a reasonable investigation, his counsel was not in a position to evaluate strategic choices.

The magistrate judge rejected, without discovery or a hearing, the theory that a penalty phase mental health defense would not have been successful because the psychiatrist retained by defense counsel would not have testified favorably. 6 However, the records indicate that the psychiatrist believed Hayes was in the grip of Ritalin delirium when he killed Patel. More importantly, Hayes’ claim is that his trial counsel failed to prepare the expert for penalty phase testimony, and provide him with adequate information. Thus, to reject summarily this penalty phase claim on the basis that the expert was not prepared to testify favorably actually helps prove Hayes’ central argument. In any event, Hayes’ only needed to present a colorable claim to be entitled to an evidentiary hearing on the question. The magistrate judge erred in denying him that opportunity.

The magistrate judge also based his opinion, in part, on Hayes’ direction that his family members not testify at the penalty phase. We have held that counsel’s duty to investigate mitigating evidence is *1095 “neither entirely removed nor substantially alleviated by his client’s direction not to call particular witnesses to the stand” and that “a lawyer who abandons investigation into mitigating evidence in a capital case at the direction of his client must at least have adequately informed his client of the potential consequences of that decision and must be assured that his client has made ‘informed and knowing’ judgment.” Silva, 279 F.3d at 838 . Indeed, under applicable guidelines “a lawyer’s duty to investigate is virtually absolute, regardless of a client’s expressed wishes.” Id. at 840 . Here, no investigation was performed. Silva forecloses a grant of summary judgment based on client instruction. Hayes was entitled to discovery and an evidentia-ry hearing on the issue.

“Failure to present mitigating evidence at the penalty phase of a capital case constitutes ineffective assistance of counsel.” Bean, 163 F.3d at 1079. Here, the penalty phase presentation was anemic, at best. Although brevity of presentation alone does not constitute ineffective assistance of counsel per se, see, e.g., Payton v. Woodford, 299 F.3d 815, 832 (9th Cir.2002) (Tallman, J., concurring in part and dissenting in part), it does raise significant questions. A host of mitigating evidence was available for presentation. Failure to present mitigating evidence may be excused when it is the product of a reasoned strategic choice. Bell v. Cone, — U.S. -, -, 122 S.Ct. 1843, 1853-54 , 152 L.Ed.2d 914 (2002). However, the question of whether a strategic choice was made in this case is one for an evidentiary hearing, not to be decided on summary judgment on the basis of inferences.

In sum, Hayes has made a classic, color-able claim of ineffective assistance of penalty phase counsel. He was entitled to discovery, investigative funds, and eviden-tiary hearing on his claim.

IV

For these reasons, I would reverse the judgment of the district court. Thus, I respectfully dissent from Sections III, IV and V of the majority opinion and the judgment.

. This rule applies even when the State, although not soliciting false evidence, allows it to go uncorrected when it appears. Alcorta v. Texas, 355 U.S. 28 , 78 S.Ct 103 , 2 L.Ed.2d 9 (1957); Pyle v. Kansas, 317 U.S. 213 , 63 S.Ct. 177 , 87 L.Ed. 214 (1942).

. The district court did not hold an evidentia-ry hearing on this issue, because it assumed that the events had occurred as alleged by the defendant. Most of the essential facts are based on sworn testimony and are undisputed. As the district court noted, the existence of the deal was "tacitly admitted” by the state in other litigation. However, I believe that an evidentiary hearing is warranted to not only confirm the allegations, but to allow the state to present an evidentiary defense, if it chooses to do so.

. See, e.g., Jennings v. Woodford, 290 F.3d 1006, 1014 (9th Cir.2002); Visciotti v. Woodford, 288 F.3d 1097, 1108-10 (9th Cir.2002); Karis v. Calderon, 283 F.3d 1117, 1133 (9th Cir.2002); Silva v. Woodford, 279 F.3d 825, 836-38 (9th Cir.2002); Garceau v. Woodford, 275 F.3d 769, 779 (9th Cir.2001) (Thomas, J., concurring); Mayfield v. Woodford, 270 F.3d 915, 927-28 (9th Cir.2001) (en banc); Ainsworth v. Woodford, 268 F.3d 868, 874 (9th Cir.2001); Jackson v. Calderon, 211 F.3d 1148, 1162 (9th Cir.2000); Bean v. Calderon, 163 F.3d 1073, 1079 (9th Cir.1998); Bloom v. Calderon, 132 F.3d 1267, 1277 (9th Cir.1997); Hendricks v. Calderon, 70 F.3d 1032, 1043 (9th Cir.1995); Deutscher v. Angelone, 16 F.3d 981, 984 (9th Cir.1994); Evans v. Lewis, 855 F.2d 631, 636 (9th Cir.1988).

. See supra note 3.

. "It is clear from the limited evidence presented, and clear from trial counsel's penalty phase argument, that he thought his one best strategy was to impress upon the jury the petitioner’s amenability to control his violent outbursts under prison conditions....”

. The magistrate judge based this, in part, on an improper reading of testimony the psychiatrist gave at the evidentiary hearing on Hayes' claim that he was improperly excluded from the penalty phase of the trial without mental examination. After ordering, in limine, that no expert opinions were to be given at the hearing, and that the hearing was limited to the question posed, the magistrate judge relied on an answer given on cross-examination to draw the substantive inference that the psychiatrist would not have been of assistance at the penalty phase. It was improper to make a factual finding on summary judgment based on this inference without allowing petitioner the opportunity to have a full evidentia-ry hearing on the issue.