Opposition Brief — Tracy Dearl Cain, Petitioner v. Ronald Davis, Warden

No. 17-9218

Iu the Suprenw Court of the United States

TRACY DEARL CAIN,

Petitioner,

v.

RONALD DAVIS, Warden

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF IN OPPOSITION

XAVIER BECERRA

Attorney General of California

EDWARD C. DUMoNnT

Solicitor General

GERALD A. ENGLER

Chief Assistant Attorney General

LANCE E. WINTERS

Senior Assistant Attorney General

MICHAEL R. JOHNSEN

Deputy Solicitor General

JAMES WILLIAM BILDERBACK II

Supervising Deputy Attorney General

*KIMARA A. AARONS

Deputy Attorney General

300 South Spring Street, Suite 1702

Los Angeles, CA 90013

(213) 269-6092

Kim.Aarons@doj.ca.gov

*Counsel of Record

CAPITAL CASE

QUESTIONS PRESENTED

1. Whether the court of appeals erred in concluding that the California

Supreme Court reasonably rejected Cain’s ineffectiveness challenge to his

lawyer's penalty-phase investigation.

2. Whether there is any reason to remand this case for the court of

appeals to consider whether this Court’s decision in McCoy v. Louisiana, 138

S. Ct. 1500 (2018), affects the court of appeals’ conclusion that the California

Supreme Court reasonably rejected Cain’s constitutional challenge to his

lawyer's guilt-phase concession that petitioner is legally liable for felony

murder.

ii

TABLE OF CONTENTS

Statement...

Argument...

Conclusion

iii

TABLE OF AUTHORITIES

Page

CASES

Burger v. Kemp

BBS UB. TIC LOB) icssccccssssaatesvensysn secnespeiesuiilisiisi Sis iSVAGiNGibiantnstdenonernenneneoneen 13

Cain v. California

116 S. Ct. 783 (1996)

Cullen v. Pinholster

BEB WS: 1LO(2O1 1) 'ecuccsercosonasvervecsrsstsipearsssetebonnsasnoenseoreeesnereeneneyennearacen 11, 13

Debruce v. Commissioner, Alabama Department of Corrections

758 F.3d 1263 (11th Cir. 2014) oo.ccccceccccccssccesssscsssscsssssecsescecseensasseerseees 14, 15

Florida v. Nixon

543 WS: 175 (ZOOS) ssnccserstersavevesuesecissstesecsheerncgonepesecnsearsarsoneaensannnensenenens 16, 17

Green v. Fisher

B65 U.S! $4) COLD i. sesset anccrosnevssorsvescanaseosscrersseosvovesesenmsmereassesuesaesecpanvesesaes 16

Harrington v. Richter

562 U.S. 86 (2011) ......eesessesssseeseesesseeneesecseeseneesessecscsessecsseusseeseessssssessesaseseeees 11

In re Reno

BG Cal Ae AZI ED ) | ossaccvscosussancssssvaseuanascsmnavesnsiaassnennedaassaiiesasicecas 16

McCoy v. Louisiana

138 S. Ct. 1500 (2018) ....ececeeesessseseseseseessessesescseseseseseseecscstscsescscseseeees passim

Porter v. McCollum

658) 0.8530 (2009) sevtsennnusraccwnacusiesumatnnnusmmrenaman 13, 14

Strickland v. Washington

466 U.S. 668 (1984) ..o.ceeeccccscssssssescsescscscscescscsetscscsevevscsevevecevarsecavaceees passim

Wood v. Allen

558: UiS) 290 (201) scivest censccseesesseserecavacstssarasare weeveneewseaeiaa ssid eschedeodbareoerees 15

iv

TABLE OF AUTHORITIES

(continued)

Page

STATUTES

28 USC, 82204) LD ssssosvsscsvevabusasuassecerseeearssnacvssssseeeecessasdbeessomennacnegneereceneeeneeet i

Cal. Pen. Code § 189, 190 ....cccceccssessecsessessessestesesssssssussusasseeuearsssaesseaecsvesesseeseavees 2

Cal. Pen. Code § 190 ....eececeecssessssssesssssseesssesessescssescsveusevsesusacatsusassususacavsucataveveaceve 2

Cal. Pen. Code § 190.2(a)

CONSTITUTIONAL PROVISIONS

U:S:. Const iamiond) Vi ise vesesmeccencansesrexesoseemarvesrncssauerseunesnes re aversueneaveresd 6, 11

Court RULES

Oth Cir, R. 22-1(C) ...ceeceececsessessessesseesesseseeseeneeseseeeecseeseeseesesessessesusaeesessesnssecsesseeaees 7

OTHER AUTHORITIES

Antiterrorism and Effective Death Penalty Act of 1996

STATEMENT

1. Petitioner Tracy Cain broke into the home of his father’s neighbors,

William and Modena Galloway, robbed them, sexually assaulted Mrs.

Galloway, and beat the couple to death with their grandchild’s rocking chair.

Pet. App. 227-228, 230-233. The police investigation revealed that, on the

night of the murders, Cain hosted a party at his father’s house while his father

was out of town. Id. at 5. During the party, Cain drank beer and smoked crack

cocaine. Id. at 228. He wanted to buy more drugs but was low on money, so

he asked Ulysses Mendoza and David Cerda to help him burglarize the

Galloways’ home, as the couple was known to keep large amounts of cash. Id.

at 5-6, 229-230. Mendoza refused, but Cerda agreed. Id. at 5-6.

Witnesses reported that Cain and Cerda left the party together and that

Cerda returned without Cain after only a few minutes. Pet. App. 6. Sometime

later, Cain returned with a large amount of money and blood all over his

clothes, bragging that he “had thousands” and had “knocked them smooth out.”

Id. at 6, 231. The following day, Cain spent more than $200 in cash. Id. at 6-

Ts

The crime scene was consistent with Cain’s admissions. Mr. Galloway

had been struck in the head and chest at least thirteen times. Pet. App. 232-

233, 237; D.Ct. Dkt. 55:43 at 2. Mrs. Galloway’s head was severely beaten, and

blood was splattered on the wall near her body. Pet. App. 7, 234. She was

nude from the waist down, with her legs spread wide apart. Id. at 8, 235. Pubic

hairs found on her clothing matched Cain’s. Id. at 236-237. And various items,

including cash and a jewelry box, were missing from the Galloways’ home. Id.

at 234.

Cain was arrested four days after the murders. Pet. App. 228, 231, 234.

He had cuts on his fingers and knuckles, and a bruise on his shoulder. Id. at

234. During an interview with police, Cain stated that he broke into the

Galloways’ home to look for money, accompanied by Cerda and two other

individuals. Id. at 9-10, 234-235. He denied that he was the one who killed

the Galloways, but admitted he was present during the murders. Jd. at 235.

Cain also stated that he returned to the Galloways’ home the following

morning to wipe away fingerprints. Id. at 9.

2. The district attorney charged Cain with two counts of first-degree

felony murder accompanied by four special-circumstance allegations: multiple

murder, burglary-murder, robbery-murder, and attempted rape-murder. Pet.

App. 4; D.Ct. Dkt. 55:2 at 86, 89. In California, the penalty for first-degree

felony murder in the absence of special circumstances is imprisonment for

twenty-five years to life with the possibility of parole. Cal. Penal Code §§ 189,

190, 190.2(a). But if a jury finds the existence of one or more special

circumstances, the penalty is either death or life imprisonment without the

possibility of parole. Cal. Penal Code § 190.2(a)(3) & (a)(17).

Cain alleges that before trial he rejected an offer from the prosecution to

plead guilty to capital murder in exchange for a sentence of life without the

possibility of parole. Pet. 4; Pet. App. 698.! According to Cain’s stepmother,

Cain told her that he would not accept the plea offer because he “didn’t want

to plead guilty as he hadn’t killed anyone.” Pet. App. 699-700.

In preparing Cain’s defense, his trial counsel retained Dr. Theodore

Donaldson to conduct a psychological evaluation. Pet. App. 468. Dr.

Donaldson tested and interviewed Cain, then prepared a report summarizing

Cain’s background and possible psychological problems. Id. According to Dr.

Donaldson, Cain denied using illegal drugs or alcohol; he did not appear to

have any thought disorder; his memory was excellent; his speech was clear,

articulate, and of fair quality; and there was no indication that he was

psychotic or suffered from any other serious psychological problem. Id. at 469-

470. In Dr. Donaldson’s opinion, Cain had an emotionally unstable personality

characterized by poorly controlled anger and a tendency toward temper

outbursts. Id. at 470. Donaldson concluded that there were “certainly no

indications” of a gross brain disorder. Id.

Cain’s trial counsel also retained Dr. Ronald Siegel to test samples of

Cain’s hair for the presence of controlled substances. D.Ct. Dkt. 124:23 at 31.

Dr. Siegel found no detectable amounts of controlled substances in the hair as

far back as nine months prior to the murders. Pet. App. 227. He thought that

| Whether any such offer was ever made or declined is unsettled. The

courts below assumed the truth of Cain’s allegation for purposes of ruling on

the federal habeas claim at issue here, and for present purposes this Court may

do the same.

Cain’s alcohol use at the time of the murders “was of little behavioral

significance.” D.Ct. Dkt. 124:23 at 31.

At the guilt phase of trial, Cain’s defense was that he entered the

Galloways’ home with other individuals to look for money, and though he was

present when the couple was murdered he did not kill them. Pet. App. 238.

During opening and closing guilt-phase arguments, Cain’s counsel admitted

that Cain was guilty of burglary, and consequently legally guilty of felony

murder. Jd. at 719-720. Counsel instead stressed in his argument that Cain

was not guilty of any special circumstance that would make him eligible for

the death penalty or life without parole, because he lacked the specific intent

to kill that was required for the jury to find any of the alleged special

circumstances true. Id. at 734-738. At no point during trial did Cain voice any

objection or opposition to counsel’s admission that he was guilty of felony

murder. At the conclusion of the guilt phase, the jury convicted Cain of the

two murders and found true all four of the special circumstances. Id. at 226.

At the penalty phase, the prosecutor presented evidence in aggravation

consisting of numerous incidents in which Cain had engaged in violence. Pet.

App. 281-283. This included evidence that Cain had struck his ex-girlfriend

on the head with a tire iron, that he had hit a man in the head with a rock

during a fistfight, and that he had attacked a juvenile detention officer,

breaking the officer’s nose. Id. at 282-283.

In mitigation, Cain’s stepmother and father testified about his

upbringing, relating that Cain was a “typical boy” and a “good kid.” Pet. App.

12. Two correctional officers testified about Cain’s good behavior during

previous periods of incarceration. Id. at 11-12. Anda sociologist testified about

the deprivations of life in prison and the behavior of life prisoners. D.Ct. Dkt.

55:52 at 47-63. The defense also presented evidence that David Cerda, though

charged with the Galloway murders, was not facing the death penalty or life

without the possibility of parole. D.Ct. Dkt. 55:52 at 6645-6647.

In his closing argument, Cain’s counsel urged the jury to have mercy on

Cain and to spare his life. Pet. App. 433-438. He argued that the murders

were unplanned, that Cain was mentally impaired by drugs when he entered

the Galloways’ home, and that there was reasonable doubt about whether Cain

personally killed the Galloways. Id. at 407-409, 419-421. He also argued that

life in prison would be a just punishment since it would adequately protect

society, Cain was not beyond redemption, and Cerda was not facing death for

the same murders. Jd. at 413-414, 425-438.

After deliberating for about two days, the jury fixed the punishment for

each murder at death. Pet. App. 226; D.Ct. Dkt. 55:2 at 452, 455, 481-482.

3. The California Supreme Court affirmed Cain’s convictions and

sentence on direct appeal. Pet. App. 226-317. The court rejected Cain’s claim

that his trial counsel’s concession of liability for felony murder was ineffective

and that the concession was impermissible without specific evidence of a

knowing, voluntary, and intelligent personal waiver by Cain. Id. at 242-244.

This Court denied certiorari. Cain v. California, 116 S. Ct. 783 (1996) (No. 95-

6367).

On state habeas corpus, Cain alleged that his trial counsel was ineffective

in investigating Cain's social history, substance abuse, and mental

impairments for potential penalty-phase mitigation. Pet. 15. In support of the

claim, Cain submitted a declaration from Dr. Ruth Zitner, a clinical

psychologist, summarizing Cain’s background, including poverty, physical

abuse, and a possible childhood head injury. Pet. App. 471-537. In Dr. Zitner’s

opinion, “these experiences and conditions formed the context for [Cain’s]

behavior” around the time of the killings. Id. at 537. Cain also submitted

declarations from two other mental health professionals, who concluded that

Cain suffered from moderate mental impairments and that he was

“particularly deficient in rapid comprehension of verbal material, his ability to

do two things at once and to selectively attend to information.” Id. at 555, 581,

558; see also id. at 584. In addition, a declaration by Dr. Donaldson stated that

he recalled advising Cain’s counsel before trial that “he might want to have

Mr. Cain examined by a neuropsychologist.” Id. at 693-697. The California

Supreme Court summarily denied the claim on the merits. Id. at 224.

4. On federal habeas corpus, the district court similarly rejected Cain’s

claims that trial counsel’s guilt-phase concession of felony-murder liability

violated the Sixth Amendment, D.Ct. Dkt. 275 at 5-6, 49-55, and that trial

counsel inadequately investigated potential penalty-phase mitigating

evidence, id. at 189-194, 318, 319. That court did not grant a certificate of

appealability on these claims.

The court of appeals granted a certificate of appealability as to both

claims, but affirmed their rejection. Pet. App. 1-44.2 Applying the deferential

standard of review required by the Antiterrorism and Effective Death Penalty

Act of 1996 (AEDPA), the court held that the California Supreme Court’s

denial of the claims was not contrary to, or an unreasonable application of, this

Court’s clearly established precedent. See 28 U.S.C. § 2254(d)(1); Pet. App. 23-

27.

With respect to the guilt-phase ineffectiveness claim, the court observed

that, as a strategic matter, any attempt to dispute Cain’s involvement in the

crime “would have been unpersuasive given the evidence,” and that counsel’s

“acknowledgment of his client’s guilt in the killing could reasonably have been

intended to establish credibility with the jury in the face of horrendous

facts... .” Pet. App. 25 (citation and internal quotation marks omitted). The

court noted that Cain had suggested “no alternate theory, let alone one more

likely to succeed than the one chosen by his counsel,” id., and that “convincing

the jury that Cain was not guilty of felony murder would have been an

? Cain included the claims in his brief on appeal as “uncertified issues,”

which in the Ninth Circuit constitutes a motion to expand the certificate of

appealability. Ninth Cir. R. 22-1(e). The State did not respond to the

uncertified issues in its brief. After oral argument, the court of appeals

expanded the certificate of appealability and addressed the claims in its

opinion. Pet. App. 22-23.

exceedingly difficult task for even the most skilled attorney,” id. (citation and

internal quotation marks omitted). The court observed that counsel could have

made a reasonable strategic calculation to focus on avoiding a capital sentence

by arguing that, although involved in the crimes, Cain did not actually kill the

Galloways and lacked the specific intent to kill required for the jury to find any

of the alleged special circumstances. Id. The court therefore concluded that

the California Supreme Court’s rejection of the claim was not contrary to, or

an unreasonable application of, Strickland v. Washington, 466 U.S. 668 (1984).

Id. at 26.

The court of appeals similarly concluded that there were reasonable

grounds for the California Supreme Court’s rejection of Cain’s penalty-phase

ineffectiveness claim. Pet. App. 33-36. The court observed that “counsel may

have seen limited utility in presenting a defense premised on Cain’s mental

state” because Dr. Donaldson found that “Cain’s ‘sociopathy’ and

predisposition to ‘episodic and violent acting out’ were not the result of any

‘gross brain disorder’ or psychosis.” Jd. at 34. The court concluded that it

“would not have been unreasonable for the California Supreme Court to

determine that Cain’s counsel did perform an investigation and relied on Dr.

Donaldson’s evaluation in deciding to emphasize Cain’s positive conduct

during past incarcerations and his lack of premeditation rather than Cain’s

troubled background and psychological problems.” Id. at 34-35.

The court of appeals also rejected Cain’s argument that counsel was

ineffective in failing to follow up on certain “red flags” raised by Dr.

Donaldson’s report suggesting the possibility of central nervous system

dysfunction. Pet. App. 35. The court explained that no such dysfunction was

found in Dr. Donaldson’s own evaluation, “and Dr. Donaldson concluded that

there were ‘certainly no indications of gross brain disorder.” Id. The court

acknowledged that Dr. Donaldson signed a declaration more than a decade

after his initial report stating that he recalled advising trial counsel that he

might want to have Cain examined by a neuropsychologist. Id. But the court

determined that “even if Dr. Donaldson’s assertion is accepted as true, the

state court could reasonably conclude that not all competent attorneys would

pursue additional expert testing based on Dr. Donaldson’s mere suggestion

that certain dysfunctions ‘may’ or ‘might’ exist, especially where Dr.

Donaldson’s own report found no evidence of such dysfunctions.” Id.

Finally, the court of appeals rejected Cain’s argument that counsel was

ineffective in failing to present sufficient mitigating evidence of his family

background. Pet. App. 35-36. The court acknowledged that the postconviction

evaluations indicated that “Cain was not a typical child.” Id. The court

determined, however, that Cain was not prejudiced by the omission of such

evidence, because “although Cain’s social and psychological histories may have

provided potential mitigating circumstances, the additional background

information is not sufficiently compelling to warrant habeas relief? and “it

could have opened the door to inflammatory and prejudicial aggravating

10

evidence.” Jd. at 36 (citation and internal quotation marks omitted). The court

concluded that “in light of the aggravating circumstances involving the brutal

murders of a couple in their sixties, the thirteen blows administered to Mr.

Galloway, the attempted rape of Mrs. Galloway, and Cain’s prior violent acts,

the state court's denial of this claim was not unreasonable.” Id.

ARGUMENT

Cain asks this Court to review his claim that trial counsel’s penaltyphase investigation was constitutionally ineffective. The court of appeals

properly resolved that claim under the deferential AEDPA standard, and its

decision does not conflict with this Court’s Strickland precedent or with that

of other courts of appeals. Cain also seeks review of his claim that trial counsel

was ineffective when he conceded Cain’s liability for felony murder at the guilt

phase of the trial, or a remand for reconsideration of that claim in light of this

Court’s recent decision in McCoy v. Louisiana, 138 S. Ct. 1500 (2018). But

analysis under AEDPA focuses on the reasonableness of a state court’s

adjudication of a claim. McCoy had not been decided at the time of the state

decision here, and in any event would not support Cain’s claim. There is no

need for further review.

1. Cain contends that the court of appeals incorrectly interpreted and

applied the standard of Strickland v. Washington, 466 U.S. 668 (1984), in

rejecting his penalty-phase ineffectiveness claim, in conflict with this Court’s

precedent and a decision of the Eleventh Circuit. Pet. 19-32. But the court

below properly applied AEDPA in deciding that the California Supreme

11

Court’s adjudication of Cain’s claim satisfied the doubly deferential standard

of review that governs a Strickland claim in these circumstances. Pet. App.

31; Harrington v. Richter, 562 U.S. 86, 105 (2011).

a. The court of appeals’ decision does not weaken the Sixth Amendment

duties of counsel, as Cain claims, by failing to make proper inquiry into

counsel’s performance. Pet. 19-24. As Cain acknowledges, the Strickland

inquiry is case-specific. Pet. 22. This Court has warned against “attributing

strict rules” to particular Strickland decisions in addressing claims of

ineffective assistance of counsel. Cullen v. Pinholster, 563 U.S. 170, 196 (2011).

It has cautioned that, “[b]eyond the general requirement of reasonableness,

‘specific guidelines are not appropriate.” Id. at 195 (quoting Strickland, 466

US. at 688).

Cain essentially disputes the court of appeals’ assessment of the facts of

his case, arguing again that Dr. Donaldson’s report should have prompted trial

counsel to pursue further investigation into Cain’s possible mental

impairments for purposes of penalty-phase mitigation. Pet. 21-25. He argues

that the report was focused on guilt-phase considerations, did not fully take

account of his social history, and nonetheless disclosed information that should

have alerted competent counsel that further investigation might have borne

fruit. Id. As the court of appeals observed, however, it would at least be

reasonable, under AEDPA’s doubly deferential standard, for the state court to

reach a contrary conclusion given the report’s finding that Cain did not suffer

12

from any significant mental impairment. Pet. App. 35.

To the extent the court below did not address the adequacy of counsel's

investigation into Cain’s social history, Pet. 23-24, that is because it concluded

that any failure to present the additional social-history evidence Cain offered

on collateral review was not prejudicial, Pet. App. 36. It was therefore

unnecessary for the court to address whether counsel’s performance was

deficient in that regard. Strickland, 466 U.S. at 697 (in analyzing a claim of

ineffective assistance, a court may first consider either the question of deficient

performance or the question of prejudice; if the petitioner fails to satisfy one

prong, the court need not consider the other).

b. The court of appeals’ opinion does not establish any new and

“insurmountable” Strickland prejudice standard that conflicts with this

Court’s decisions. Pet. 24-27. Cain again re-argues the application of settled

law to the facts of his case, contending that the court below did not adequately

consider all of the aggravating and potential mitigating evidence. Id. He

establishes no reason for review by this Court of the court of appeals’ proper

determination, under AEDPA, that the California Supreme Court could

reasonably reject his claim.

Cain faults the court of appeals for observing that evidence of his social

and psychological history could have opened the door to inflammatory and

prejudicial aggravating evidence without citing any “examples” of that

evidence. Pet. 24; see Pet. App. 36. There is no requirement that a reviewing

13

court enumerate specific examples of such potential aggravating evidence. See

Pinholster, 563 U.S. at 201 (holding that potential mitigating evidence would

have opened door to rebuttal without discussing specific examples). Moreover,

the possible aggravating effect of such evidence was apparent from the record.

The type of behavior and personality traits identified in Dr. Donaldson’s report,

such as Cain’s “episodic and violent acting out,” Pet. App. 34-35, may readily

cut both ways, see Burger v. Kemp, 483 U.S. 776, 794 (1987) (such evidence can

establish “the defendant’s unpredictable propensity for violence that resulted

in murder” or the likelihood that the “defendant would be dangerous in the

future”).

Nor does the prejudice assessment made in Porter v. McCollum, 558 U.S.

30 (2009), control Cain’s case, as he suggests. Pet. 26-27. A state court

described Porter’s conduct as “a crime of passion, not a crime that was meant

to be deliberately and extraordinarily painful.” Porter, 558 U.S. at 33. And

the mitigating evidence his counsel failed to present was far stronger than

Cain’s. It involved Porter's heroic military service in “two of the most critical—

and horrific—battles of the Korean War,” the trauma he suffered because of it,

and “his struggles to regain normality upon his return from war”; his abusive

childhood; his long-term substance abuse; and his impaired mental health and

mental capacity, which included “brain damage that could manifest in

impulsive, violent behavior.” Jd. at 32-40. In granting relief, this Court

stressed that Porter’s military service was significant since “[o]ur Nation has

14

a long tradition of according leniency to veterans in recognition of their service,

especially for those who fought on the front lines as Porter did.” Id. at 42-43.

There is nothing like those facts in the record here. Neither the

reasoning nor the result of the decision below is in tension with Porter.

c. There is also no conflict between the court of appeals’ decision in this

case and the Eleventh Circuit’s decision in Debruce v. Commissiona , Alabama

Department of Corrections, 758 F.3d 1263, 1273 (11th Cir. 2014). |Pet. 27-32.

In Debruce, an AEDPA case, the court held that trial counsel’s decision not to

pursue an investigation into the defendant’s mental health and hackground

after receiving a social worker's pretrial report addressing those topics was

unreasonable, as was the state court’s rejection of a Strickland challenge to

counsel's decision. Debruce, 758 F.3d at 1173-1174. The court con¢luded that

counsel's testimony at an evidentiary hearing showed that his tactical choice

was based on the “erroneous conflation of the issues of guilt-phase mental

health defenses and competence to stand trial with the separate issue of

whether to conduct a mitigation investigation.” Id. And counsel’s décision was

“all the more unreasonable” because the social worker's report cdntradicted

information counsel had received from other sources, but counse

effort to reconcile the conflicting information. Id. at 1274.

made no

Donaldson’s evaluation in this case did not present the same type of

“troubling” and conflicting leads that the social worker's report did i Debruce.

758 F.3d at 1275. Donaldson’s report concluded that Cain did not duffer from

15

any brain disorder or other serious mental problem, Pet. App. 33-34, while the

pretrial report in Debruce suggested the opposite, 758 F.3d at 1271-1272. Nor

was there any comparable indication here that trial counsel or the state court

conflated the legal standards applicable at the guilt phase with the pertinent

standards governing the penalty phase. Id. at 1273-1274 (counsel’s decision

“could not have been reasonable as it would have been based on a failure to

understand the law”).

The court below thus addressed substantially different facts from those

in Debruce and concluded that the state court’s rejection of Cain’s claim on

those facts was within the broad range of AEDPA reasonableness. That

decision does not contradict Debruce.3

2. Cain also asks that this Court review his guilt-phase ineffectiveness

claim, or remand his case for further proceedings, in light of last Term’s

decision in McCoy v. Louisiana, 138 S. Ct. 1500. Pet. 32-86. McCoy has no

bearing on this AEDPA case, however, because that decision was not clearly

established authority at the time of the state court’s adjudication. In any

event, it does not undermine the court of appeals’ decision.

AEDPA prohibits federal habeas relief on a claim that has already been

3 Cain argues that in Wood v. Allen, 558 U.S. 290 (2010), this Court

recognized a question concerning whether the reasonableness of counsel's

decision not to pursue a particular avenue of investigation at the guilt phase

carries over to the penalty phase in light of the different focus of the penalty

proceeding. Pet. 28. As he acknowledges (Pet. 29-30), however, the Court

simply declined to reach a question of reasonableness that was not before it in

the posture of that case. Wood, 558 U.S. at 302-303.

16

rejected on the merits by a state court unless the state court’s adjudication was

contrary to, or an unreasonable application of, this Court’s clearly established

precedent. E.g., Green v. Fisher, 565 U.S. 34, 37-38 (2011). Clearly established

precedent for these purposes is limited to this Court’s decisions “as of the time

the state court renders its decision.” Id. at 38. Cain does not dispute that his

guilt-phase ineffectiveness claim is subject to this limited standard of review.

And under that standard, McCoy cannot affect the resolution of Cain’s current

claim.4

As the court of appeals concluded (Pet. App. 24-27), the California

Supreme Court reasonably rejected Cain’s claim under the law established by

Strickland and Florida v. Nixon, 543 U.S. 175 (2004). In Nixon, the defendant

did not respond to his trial counsel's attempts to explain his proposed strategy

of conceding guilt and focusing on the penalty phase at a capital trial. Id. at

181-182. This Court held that counsel’s failure to obtain the defendant's

express consent to the strategy did not automatically render counsel’s

performance deficient under Strickland. Id. at 190-192. It explained that, in

a capital case, a decision to focus on the penalty phase can be a reasonable

tactical choice and is reviewed under general Strickland principles, free from

“any blanket rule demanding the defendant’s explicit consent.” Id. The court

4 Cain may return to state court and seek to present his claim anew on

the basis of McCoy, if he contends that decision amounts to “a change in the

... law substantially affecting [his] rights.” See In re Reno, 55 Cal. 4th 428,

496-497 (2012) (habeas claim may be excused from successiveness bar based

on such a change).

17

below therefore correctly determined that the state court reasona

Strickland in rejecting Cain’s guilt-phase ineffectiveness claim, in

overwhelming evidence of guilt (including direct admissions of pres¢

the home invasion and murders) and the unavailability of

alternative defense.

Even if reconsideration of petitioner’s present claim in light

were proper under AEDPA, it would not lead to a different result.

unlike in Nixon, the capital defendant “vociferously insisted that

engage in the charged acts and adamantly objected to any admissid

ly applied

ight of the

nce during

ny viable

of McCoy

In McCoy,

Ihe did not

m of guilt.”

McCoy, 138 S. Ct. at 1505. He opposed his counsel's strategy to concede guilt

“at every opportunity, before and during trial, both in conference with his

lawyer and in open court.” Jd. at 1509. This Court held that counse

to go ahead with the strategy under those circumstances violate

constitutionally protected autonomy right to maintain his innocey

1509-1511. Counsel’s strategic choice was therefore not subject tq

Strickland inquiry, but required automatic reversal. Jd. at 1510-19

This case is not comparable to McCoy. Although Cain clai

“voiced his continued objections to counsel,” Pet. 35, he has never p

declaration (from himself or trial counsel) or any other evidence to s

allegation. He relies instead on an inference from his rejection of

offer to allow him to plead guilty to capital murder in exchange for

’s decision

id McCoy’s

ce. Id. at

the usual

11.

ms that he

resented a

pport that

an alleged

la sentence

of life without parole. Pet. 4; Pet. App. 698. Even assuming, however, that

18

such an offer was made and rejected, trial counsel’s strategy was not

inconsistent with that rejection. The plea offer would have required

of life without parole. While Cain’s attorney conceded at the guilt

Cain was liable for felony murder, he argued strenuously that Cain

specific intent necessary to support a finding as to any of the alle

a sentence

phase that

lacked the

ved special

circumstances. Pet. App. 734-738. Had the argument persuaded thq jury, Cain

would not have been exposed to a life-without-parole sentence; the s

entence for

felony murder without a special circumstance would have been tlwenty-five

years to life, with the possibility of parole.

Since there is nothing in the record here showing that Cain’s will was

overborne by counsel either before or at trial, as was true in McCoy, that

decision would not alter the assessment of his guilt-phase ineffectiveness

claim. Accordingly, even apart from the AEDPA context here, here is no

reason for either review or remand for the purpose of reconside

claim in light of McCoy.

ing Cain’s

19

CONCLUSION

The petition for a writ of certiorari should be denied.

October 4, 2018

Respectfully submitted

XAVIER BECERRA

Attorney General of California

EDWARD C. DUMONT

Solicitor General

GERALD A. ENGLER

Chief Assistant Attorney General

LANCE E. WINTERS

Senior Assistant Attorney General

MICHAEL R. JOHNSEN

Deputy Solicitor General

JAMES WILLIAM BILDERBACK II

Supervising Deputy Attorney General

Kimara A. AARONS

Deputy Attorney General

Counsel for Respondent

No. 17-9218

Ju the Supreme Court of the United States)

TRACY DEARL CAIN, Petitioner,

Vv.

RONALD DAVIS, Warden, Respondent.

CERTIFICATE OF SERVICE BY MAIL

I, Kim Aarons, Deputy Attorney General, a member of the Bar| of this Court

hereby certify that on October 4, 2018, one copy of the BRIEF IN OPPOSITION in

the above-entitled case was mailed, first class postage prepaid to:

Jonathan C. Aminoff

Office of the Federal Public Defender

321 E. 2nd Street

Los Angeles, CA 90012

I further certify that all parties required to be served have been served.

Kimara A. AARONS, Deputy Attorney General

Office of the Attorney General

300 South Spring Street, Suite 1702

Los Angeles, CA 90013

Telephone: (213) 269-6092

Counsel for Respondent

LA2018501364

62980260