Opposition Brief — Hooman Ashkan Panah, Petitioner v. Ron Broomfield, Acting Warden

No. 19-8009

In the Supreme Court of the United States

HOOMAN ASHKAN PANAH,

Petitioner,

v.

RON BROOMFIELD, ACTING WARDEN,

Respondent.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF IN OPPOSITION

XAVIER BECERRA

Attorney General of California

MICHAEL J. MONGAN

Solicitor General

LANCE E. WINTERS

Chief Assistant Attorney General

JAMES WILLIAM BILDERBACK II

Senior Assistant Attorney General

RYAN B. MCCARROLL

Deputy Solicitor General

DANA M. ALI

Supervising Deputy Attorney General

TONI R. JOHNS-ESTAVILLE*

Deputy Attorney General

Counsel of Record*

300 South Spring Street, Suite 1702

Los Angeles, CA 90013

(213) 269-6166

Toni.Estaville@doj.ca.gov

Counsel for Respondent

i

CAPITAL CASE

QUESTIONS PRESENTED

1. Whether the federal courts below erred by denying a certificate of

appealability on petitioner’s claim that prejudicial third-party juror contact

occurred when a juror spoke with the juror’s husband and minister.

2. Whether the court of appeals adjudicated petitioner’s false-evidence

claim only as to the verdict of guilt and not also as to the verdict of death.

3. Whether the California Supreme Court unreasonably applied clearly

established federal law by denying relief on petitioner’s false-evidence and

ineffective-assistance claims.

4. Whether the court of appeals’ appellate commissioner violated circuit

rules by referring a motion for reconsideration to the merits panel instead of

the motions panel.

ii

DIRECTLY RELATED PROCEEDINGS

United States Court of Appeals for the Ninth Circuit:

Panah v. Chappell, No. 13-99010, judgment entered August 21, 2019,

petition for rehearing and rehearing en banc denied December 17, 2019

(this case below).

United States District Court for the Central District of California:

Panah v. Chappell, No. CV 05-7606-RGK, judgment entered November

14, 2013 (this case below).

California Supreme Court:

In re Hooman Ashkan Panah, No. S155942, petition denied March 16,

2011 (state collateral review).

In re Hooman Ashkan Panah, No. S123962, petition denied August 30,

2006 (state collateral review).

People v. Panah, No. S045504, affirmed March 14, 2005 (state direct

appeal).

California Superior Court, Los Angeles County:

People v. Panah, No. BA080702, judgment entered March 6, 1995.

iii

TABLE OF CONTENTS

Page

Statement ........................................................................................................1

Argument .........................................................................................................9

Conclusion......................................................................................................25

iv

TABLE OF AUTHORITIES

Page

CASES

Barnes v. Joyner

751 F.3d 229 (4th Cir. 2014) ........................................................................ 11

Brady v. Maryland

373 U.S. 83 (1963) ........................................................................................ 23

Brecht v. Abrahamson

507 U.S. 619 (1993) ................................................................................ 12, 13

Clark v. Chappell

936 F.3d 944 (9th Cir. 2019) ........................................................................ 12

Cone v. Bell

556 U.S. 449 (2009) ...................................................................................... 16

Crittendon v. Ayers

624 F.3d 943 (9th Cir. 2010) .............................................................. 6, 11, 13

Fields v. Brown

503 F.3d 755 (9th Cir. 2007) .................................................................... 6, 13

Godoy v. Spearman

861 F.3d 956 (9th Cir. 2017) ........................................................................ 12

Hurst v. Joyner

757 F.3d 389 (4th Cir. 2014) .................................................................. 11, 12

Kyles v. Whitley

514 U.S. 419 (1995) ................................................................................ 17, 23

Medellin v. Texas

552 U.S. 491 (2008) (Medellin I) .................................................................... 6

Medellin v. Texas

554 U.S. 759 (2009) (Medellin II) ................................................................. 7

Miller-el v. Cockrell

537 U.S. 322 (2003) ...................................................................................... 10

Napue v. Illinois

360 U.S. 264 (1959) .............................................................................. passim

v

TABLE OF AUTHORITIES

(continued)

Page

Remmer v. United States

347 U.S. 227 (1954) (Remmer I) .................................................................. 10

Remmer v. United States

350 U.S. 377 (1956) (Remmer II) ................................................................. 13

Slack v. McDaniel

529 U.S. 473 (2000) .................................................................................. 9, 10

Smith v. Phillips

455 U.S. 209 (1982) ...................................................................................... 10

Strickland v. Washington

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

United States v. Kelly

749 F.2d 1541 (11th Cir. 1985) .................................................................... 24

Warger v. Shauers

574 U.S. 40 (2014) ........................................................................................ 10

STATUTES

28 U.S.C. § 2253(c)(2) .......................................................................................... 9

28 U.S.C. § 2254(d) .......................................................................................... 8, 9

COURT RULES

Third Circuit, I.O.P. 10 ..................................................................................... 24

Fourth Circuit, Local Rule 27(e) ....................................................................... 24

Fifth Circuit, Rule 27, I.O.P.............................................................................. 24

Ninth Circuit

General Order 3.3.e...................................................................................... 24

General Order 6.3.e...................................................................................... 23

Rule 27-7....................................................................................................... 23

Rule 27-10..................................................................................................... 23

1

STATEMENT

1. In 1993, eight-year-old Nicole Parker disappeared while playing near

some apartments, one of which petitioner Hooman Ashkan Panah shared with

his mother. Pet. App. 261-262. Police arrived at the apartment complex

shortly thereafter and began searching for Parker. Id. at 262-263. Later that

day, Panah told a co-worker, Rauni Campbell, that “I have done something

very bad,” and asked her to tell his mother and friends goodbye because he

would not be seeing them again. Id. at 264. The next morning, Campbell was

awakened by Panah knocking at her window; his wrists were slashed, and he

asked her to buy sleeping pills for him. Id. Panah admitted to Campbell that

he had something to do with Parker’s disappearance and told Campbell that

Parker was not alive. Id. at 265. Campbell called 911 to report that Panah

was attempting suicide. Id. Panah fled when a police officer arrived, but was

later apprehended. Id. at 265-266. The police obtained a warrant and searched

Panah’s bedroom late that night, about 36 hours after Parker had disappeared.

Id. at 266. They found Parker’s naked, lifeless body wrapped in a bed sheet

and hidden inside a suitcase on the floor of Panah’s closet. Id.

2. The State charged Panah with capital murder (and some other, related

crimes) on the theory that he had killed Parker while engaged in the

commission of a sex offense. Pet. App. 259-260. The specified sex offenses were

sodomy, oral copulation, and lewd or lascivious acts on a child. Id.

2

To prove the oral copulation, the State relied on testimony from forensic

serologist William Moore. Pet. App. 10, 373-374. He testified that there were

stains containing a mixture of semen and large quantities of amylase

indicative of saliva on the bed sheet and on some discarded tissue paper. Id.

at 477-478, 482, 515-518. He also testified that there were stains containing

blood and saliva on a silk robe or kimono. Id. at 479, 481. He testified that all

the stains contained type A and B antigens, which could have come from a

mixture of type A antigens from Parker and type B antigens from Panah. Id.

at 476-482, 485-486, 489-491.1 Moore also cautioned that “I cannot establish

any certainty based on conventional serology.

I can only demonstrate

consistency.” Id. at 525-526.

To prove the sodomy and lewd acts, the prosecution relied on testimony

from Dr. Eva Heuser, a forensic pathologist. Dr. Heuser testified that Parker’s

vaginal opening was “outlined by a band of dark purple bruising” consistent

with digital penetration. Pet. App. 642-645. Parker’s anus and rectum also

had a “bruised appearance.” Id. at 646, 650. And there were “two tears of the

DQ Alpha typing (a type of DNA test) conducted before the trial and provided

to the defense showed that Parker could not have contributed the saliva on the

tissue paper. But this evidence was not introduced at trial. Pet. App. 6. Postconviction analysis confirmed that Parker was excluded as a source of the

saliva on the tissue paper (id. at 417, 463), and also confirmed that Panah was

excluded as a source of the saliva on the robe stain about which Moore testified

(id. at 464), but that Panah was not excluded as a source of a different stain on

the robe (id.).

1

3

skin running from the anus frontwards.”

Id. at 648.

The injuries were

consistent with penile penetration of the rectum. Id. at 651-652.

Dr. Heuser also testified about several injuries to Parker’s neck, which

were indicative of manual strangulation. Pet. App. 601, 611-613, 663-664. An

examination of Parker’s lungs indicated she had inhaled her own vomit, which

trapped air in her lungs. Id. at 662-663. Dr. Heuser also saw other bruises

and abrasions to Parker’s face. Id. at 595, 606-607, 609-610, 618. A bruise on

her forehead was consistent with impact with a wall or the floor or being struck

by a fist. Id. at 590-593, 601. Other bruises were caused by finger pressure.

Id. at 607. Scratches on the inside of her thighs were consistent with having

been made by Panah’s ring. Id. at 600-601; see id. at 354. Dr. Heuser opined

that Parker had died as a result of the cumulative effect of her injuries. Id. at

663. But the “genital trauma” and the injuries to her neck were the “most

lethal.” Id. at 664.

Although Dr. Heuser was unable to establish a precise time of death, she

opined that Parker had still been alive at the time she suffered the injuries.

Pet. App. 660, 666. Dr. Heuser also opined that the appearance of certain food

in Parker’s stomach was consistent with normal digestion for four hours or

less. Id. at 666-668. Because stress slows digestion, however, there was “quite

a range” of time within which Parker could have died. Id. at 667-668. Dr.

Heuser testified that the discovery of Parker’s body in full rigor mortis 36 hours

after her disappearance was “a little surprising,” but was “certainly within the

4

parameters given in the textbooks,” especially because there was no evidence

regarding the surrounding air temperature. Id. at 668-669.

The jury convicted Panah of first degree murder (among other crimes)

and found that he had committed the murder while engaged in sodomy and

lewd acts on a child, but not while engaged in oral copulation with a child. Pet.

App. 260. The jury returned a verdict of death. Id. at 261.

3. Following Panah’s trial, jurors R.A. and A.S. made sworn declarations

stating that fellow juror E.C. talked about “God and the Bible.” Pet. App. 749,

750. According to a defense investigator who spoke to her, juror E.C. had

confided in her husband and in a minister that she was having difficulty

returning a verdict as to penalty. Id. at 423-424. Her husband responded that

“she had to do what was right and that she should consult the Bible to see what

it has to say.” Id. at 423. The minister responded similarly by giving her “some

selected materials.” Id. at 424. She eventually “found a biblical passage, which

read: ‘He who sheds innocent blood, his blood too shall be shed.’” Id. see

Genesis 6:9. She told the investigator that this passage “helped ‘get [her] peace

with God’ regarding her decision to vote for death.” Pet. App. 424.

Panah filed two petitions for habeas relief in the California Supreme

Court. See Pet. App. 12, 34, 258. In addition to raising a juror misconduct

claim based on the juror declarations (D. Ct. Dkt. 45, Lodged Doc. Q at 381391; D. Ct. Dkt. 199, Lodged Doc. Z at 891-900), Panah raised a claim that the

prosecution had knowingly introduced false or misleading evidence from Moore

5

regarding the possibilities that (i) Parker had been a source of a stain on the

bed sheet and a stain on the tissue paper and (ii) Panah had been a source of

a stain on the silk robe (C.A. Dkt. 62-4 at 3-67). Panah also claimed that trial

counsel had provided ineffective assistance by failing to retain an independent

serologist and DNA expert, and by not investigating the cause or time of death.

Lodged Doc. Q at 104-119, 170-187; Lodged Doc. Z at 149-175, 339-383. He

further claimed that the State had violated the Vienna Convention on Consular

Relations. Lodged Doc. Q at 27-46; Lodged Doc. Z at 1102-1127. The California

Supreme Court summarily denied both petitions. Pet. App 34, 258.

4. Following the denial of his second state habeas petition, Panah filed a

second amended petition for a writ of habeas corpus in the district court. D. Ct.

Dkt. 102. The district court denied the petition in its entirety. Pet. App. 256.

The district court began by addressing Panah’s claim alleging that the

prosecution presented false serology evidence, and his related ineffectiveassistance claim regarding his attorney’s decision not to retain independent

forensic experts. The district court concluded that the state court could have

reasonably determined that: Moore’s testimony regarding the bedsheet was

not false (Pet. App. 45); Moore’s testimony regarding a stain on the robe was

immaterial because Panah could have been a contributor to a different stain

on the robe (Pet. App. 47); and Moore’s testimony regarding the tissue paper

was immaterial because “compelling evidence of the same mixture of fluids,

consistent with oral copulation, was presented through the stains on the bed

6

sheet” (Pet. App. 49). Next, the district court addressed Panah’s claim alleging

that the prosecution presented false evidence concerning the time and cause of

Parker’s death and his related ineffective-assistance claim. The district court

concluded that the state court could have reasonably determined that Dr.

Heuser’s testimony was not false and that Panah was not prejudiced because

his expert offered a cause of death that “would have been no more palatable to

the jury” and would not have refuted the basis for Dr. Heuser’s imprecise

estimate of Parker’s time of death. Id. at 71-79.

As to the juror misconduct claim concerning E.C., the district court noted

that Panah presented no evidence that biblical references were discussed or

brought into the jury room. Pet. App. 190. Thus, E.C.’s consultations did not

“add appreciably to any extraneous influence.” Id. The court also concluded

that, as in Crittendon v. Ayers, 624 F.3d 943 (9th Cir. 2010), and Fields v.

Brown, 503 F.3d 755 (9th Cir. 2007), the alleged introduction of extrinsic

evidence into the jury room did not have a substantial and injurious effect on

the jury’s verdict. Id. at 188-190.

And, as to the supposed violation of the Vienna Convention on Consular

Relations, the district court agreed with Panah’s own concession that

controlling precedents “‘appear to suggest that Panah is not entitled to relief

on this claim until Congress enacts legislation implementing the rights

contained in the Vienna Convention.’” Pet. App. 240; see Medellin v. Texas,

7

552 U.S. 491, 498-499 (2008) (Medellin I ); Medellin v. Texas, 554 U.S. 759, 759760 (2009) (per curiam) (Medellin II ).2

The district court granted a certificate of appealability on Panah’s claim

that the prosecutor knowingly presented, or failed to correct, false serology

evidence from Moore. Pet. App. 14, 256. The court of appeals expanded the

certificate to encompass Panah’s related claim of ineffective assistance, but

only as to the guilt phase. Id. at 14.

5. After Panah’s appointed counsel filed his opening brief in the Ninth

Circuit Court of Appeals, Panah filed a letter requesting the appointment of

new counsel.

See Pet. App. 28; see also id. at 29-30.

The appellate

commissioner appointed another attorney as co-counsel, but concluded that

Panah did not have an irreconcilable conflict with the original attorney. Id. at

31; see id. at 29.

Panah filed a motion to reconsider the appellate

commissioner’s order, which the commissioner referred to the merits panel. Id.

at 32, 32.1. The merits panel denied reconsideration. Id. at 33.

The court of appeals affirmed the district court’s denial of habeas relief in

a published opinion. Pet. App. 1-27. Applying the deferential standard of

review required by the Antiterrorism and Effective Death Penalty Act of 1996

The Embassy of Pakistan, Iranian Interests Section, submitted an amicus

brief regarding this issue, but the brief does not acknowledge or address the

controlling precedents upon which the district court had relied. See Amicus

Br. 5-11.

2

8

(AEDPA), the court held that the California Supreme Court’s summary

adjudication was not based on an unreasonable application of the law or

determination of the facts under 28 U.S.C. § 2254(d). Id. at 22-23, 26.

As to Panah’s false evidence claim, the court held that it was not

unreasonable for the state court to deny the claim on the ground that Moore’s

serology testimony was immaterial.

Pet. App. 16.

The court of appeals

explained that even without Moore’s testimony, the State presented a

compelling case of Panah’s guilt. The court focused on evidence of the discovery

of Parker’s dead body in Panah’s closet, Panah’s statements and conduct

following Parker’s disappearance, and Dr. Heuser’s “impactful” testimony

regarding Parker’s extensive injuries, which it compared to the minimal value

of Moore’s “hypotheticals and wavering findings.” Id. at 17-19. Based on the

state of the evidence, the court concluded that, “at most, although we think

unlikely, the State’s case may have become marginally weaker” had Moore’s

testimony been corrected. Id. at 21-22.

As to Panah’s ineffective-assistance claim, the court of appeals held that

the state court reasonably concluded that Panah was not prejudiced by his

counsel’s failure to independently investigate the serology and pathology

evidence. Pet. App. 24. The court of appeals noted that Panah could have

refuted Moore’s testimony about the tissue paper but could not refute his

testimony about the bedsheet and robe. Id. at 25. The court further observed

that the presence of Parker’s dead body in Panah’s closet—and not Moore’s

9

testimony—connected Panah to the crime. Id. 25. Finally, the court concluded

that “further challenging Dr. Heuser’s testimony on the cause of death” would

not have changed the outcome, because Panah’s expert offered comparable

testimony on the cause of death. Id. at 26-27.

ARGUMENT

1. Panah argues that the courts below erred by not issuing a certificate

of appealability on his claim of juror misconduct. Pet. 16-22. He contends that

he made a substantial showing that the California Supreme Court violated

federal law when it summarily adjudicated his claim on the merits without an

evidentiary hearing. But the state court’s rejection of this claim was consistent

with this Court’s precedent—and certainly did not amount to an unreasonable

application of clearly established federal law. 28 U.S.C. § 2254(d). What is

more, Panah has never made a colorable showing of actual prejudice as

required to obtain federal habeas relief. Under these circumstances, there was

no basis for the courts below to grant a certificate of appealability.

a. A habeas petitioner does not have an automatic right to appeal.

Rather, the petitioner must obtain a certificate of appealability by

demonstrating “a substantial showing of the denial of a constitutional right.”

28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 481 (2000). To do this,

the petitioner must show that “jurists of reason could disagree with the district

court’s resolution of his constitutional claims or that jurists could conclude the

issues presented are adequate to deserve encouragement to proceed further.”

10

Slack, 529 U.S. at 484. Where AEDPA’s deferential standard of review applies,

as here, the question is “whether the District Court’s application of AEDPA

deference . . . was debatable among jurists of reason.” Miller-el v. Cockrell, 537

U.S. 322, 341 (2003).

Extraneous influences on a jury are deemed presumptively prejudicial.

Remmer v. United States, 347 U.S. 227 (1954) (Remmer I ); see Warger v.

Shauers, 574 U.S. 40, 51, (2014) (information derived from a source external to

the jury is deemed extraneous). But “due process does not require a new trial

every time a juror has been placed in a potentially compromising situation.”

Smith v. Phillips, 455 U.S. 209, 217 (1982).

“The presumption is not

conclusive,” and the government may overcome it by establishing, “after notice

to and hearing of the defendant, that such contact with the juror was harmless

to the defendant.” Remmer I, 347 U.S. at 229.

Here, Panah claims that juror E.C. committed misconduct by conducting

“an extrinsic conversation with her preacher—during deliberations—wherein

the preacher pointed her to Biblical passages that suggested a convicted killer

should, himself, be killed.” Pet. 16. Panah learned about this contact and

retained a private investigator to look into it. Pet. App. 423. According to the

declaration submitted by that investigator—the only declaration Panah has

proffered on the issue—the minister merely “gave [E.C.] some selected

materials” in response to her request for “biblical references or other spiritual

writings regarding the legal system.” Id. at 424. The declaration also states

11

that E.C. later “found” the passage from Genesis 6:9 at issue here. Id. The use

of the word “found” indicates that, even if the passage had been included in the

materials provided by the minister, the minister had not specifically directed

her attention to it. The case is, accordingly, analogous to those involving a

juror’s own independent study of the Bible or other religious text. And “the

bare showing that a juror read a religious text outside the jury room does not

establish prejudice.” Crittenden v. Ayers, 624 F.3d 943, 972-974 (9th Cir. 2010).

b. Those circumstances make this case materially different from others

in which courts have held that a hearing was required. In Barnes v. Joyner,

751 F.3d 229 (4th Cir. 2014), for example, a juror allegedly asked her pastor

about defense counsel’s argument that any juror who voted for death would

one day face judgment for their actions. Id. at 236. The pastor replied by

quoting another biblical passage that contradicted defense counsel, which the

juror then read to the other jurors when back in the deliberation room. Id. In

holding that the state court had unreasonably applied Remmer I and its

progeny by not conducting an evidentiary hearing, the Fourth Circuit

emphasized that the juror “was actually directed to a specific biblical passage

by her pastor in response to an argument about the death penalty . . . .”

Barnes, 751 F.3d at 251. In other words, the pastor “did not simply provide

[the juror] with a Bible.” Id. Likewise, in Hurst v. Joyner, 757 F.3d 389 (4th

Cir. 2014), a juror’s father specifically “directed her to an (as yet) undetermined

12

‘eye for an eye’ verse . . . .” Id. at 398. There was no similar evidence of

“direction” in the present case.

Panah also alleges an intra-circuit conflict (Pet. 22 n.5), but the decision

below is not inconsistent with other Ninth Circuit decisions.

In Clark v.

Chappell, 936 F.3d 944 (9th Cir. 2019), for example, a minister allegedly

counseled a juror “‘that in these circumstances the death sentence would be

appropriate because the Bible says, “an eye for an eye.”’” Id. at 971. And in

Godoy v. Spearman, 861 F.3d 956 (9th Cir. 2017), a juror was alleged to have

shared information from an outside judge at times when “‘the jury was not sure

what was going on or what procedurally would happen next.’” Id. at 966 n.5.

The Ninth Circuit noted that the quoted language in Godoy militated toward

an evidentiary hearing, because it “could refer to substantive legal or factual

questions as easily as procedural questions . . . .” Id. Here, in contrast, Panah

has proffered only a declaration asserting that a minister gave a juror “some

selected materials” in response to her request for “biblical references or other

spiritual writings regarding the legal system,” and that the juror herself

“found” the passage in Genesis 6:9 at issue. Pet. App. 424.

c. In any event, Panah has never made the substantial showing of actual

prejudice required to obtain federal habeas relief. See Brecht v. Abrahamson,

507 U.S. 619, 637 (1993). In particular, Panah has never established that the

alleged contact had a substantial and injurious effect or influence in

13

determining the jury’s verdict. See Crittenden, 624 F.3d at 973-974; Fields,

503 F.3d at 781-783. Pet. App. 188-190.

Indeed, the record reflects that E.C. did not discuss or share the contents

of the extrinsic information she had found, and the information had simply put

her at peace with her verdict. Pet. App. 424, 749, 750, cf. Remmer v. United

States (Remmer II), 350 U.S. 377, 381 (1956).3 As previously mentioned, “the

bare showing that a juror read a religious text outside the jury room does not

establish prejudice.” Crittenden, 624 F.3d at 973. And, as the district court

noted, the biblical passage in the present case was relatively “innocuous,”

because it did not appear “to call specifically for ‘man’ to exact justice . . . .”

Pet. App. 190. Rather, it “seems only to forecast that the outcome ‘shall’

happen.” Id. Finally, the aggravating evidence in this case was overwhelming.

The nature of the crimes of which Panah was convicted were particularly

egregious. Panah sexually brutalized eight-year-old Parker in a prolonged

attack that caused catastrophic injuries and her ultimate death. Id. at 7-8.

Panah thus failed to carry his burden under Brecht, and the court of appeals

did not err by denying a certificate of appealability.

In Remmer II, which followed the hearing this Court ordered in Remmer I,

this Court held that a third party’s offer of money to a juror in exchange for his

vote, FBI investigation into the contact, and the juror’s candid admission that

he was “under a terrific pressure” showed that the juror’s contact with a third

party so affected the juror that he was unable exercise “his freedom of action

as a juror.” Remmer II, 350 U.S. at 381.

3

14

2. Panah next asks this Court to vacate the court of appeals’ judgment

and remand for that court to consider his claims that (i) the prosecution

knowingly introduced false serology evidence in violation of Napue v. Illinois,

360 U.S. 264 (1959) and (ii) defense counsel provided ineffective assistance

under Strickland v. Washington, 466 U.S. 668 (1984) by not investigating that

evidence despite having reason to know it was false. Pet. 23-25. He faults the

court of appeals for “fail[ing] to address the import of those constitutional

violations on his capital sentence.” Id. at 25. But a closer review of the

procedural history and the decision below shows that the court of appeals

effectively concluded that the serology evidence did not influence the jury’s

verdict of death.

That conclusion is correct and does not warrant

reconsideration by the court of appeals or plenary review by this Court.

Panah argued in the district court that his Napue claim warranted relief

from his sentence because the jury, “at the very least, would not have

sentenced him to death” but for the supposedly false evidence that he had

“sexually assaulted” Parker. D. Ct. Dkt. 144 at 113, 115, 120. He similarly

argued that his Strickland claim warranted relief because his jury would have

found him not guilty, and his trial “would have at least resulted in Panah not

being eligible for or receiving the death penalty” had counsel retained a DNA

expert and forensic pathologist. Id. at 71, 75. The district court denied relief

on both claims, explaining that the state court “may have reasonably held that

any assertions called into question by the DNA testing had no reasonable

15

likelihood of impacting Petitioner’s outcomes at trial.” Pet. App. 48. For

example, “any false evidence presented regarding the stain on the kimono did

not have any reasonable likelihood of affecting the jury’s guilt or penalty

determinations.” Id. at 47 (emphasis added). The district court issued a

certificate of appealability on the Napue claim, but not on the Strickland claim.

The court of appeals subsequently expanded the certificate to include the guiltphase Strickland claim. Id. at 14.

On appeal, Panah reiterated his claim that the serology evidence from

Moore had affected the verdict of death, because it “provided a graphic, horrific

narrative of the crime to exploit the jury’s emotions during the penalty phase.”

Pet. C.A. Br. 58, 61-62.

He specifically argued that “[w]ithout Moore’s

testimony, the prosecutor could not have argued that the victim orally

copulated Panah, or that she spit out ejaculate first onto a tissue-paper and

then onto a bed sheet,” or that the sodomy “involved Panah’s saliva dripping

onto a bloody kimono.” Id. at 61.

The court of appeals rejected those arguments, explaining that testimony

from Dr. Heuser made it unlikely that the serology evidence from Moore

affected the jury’s verdict. Specifically, “while Panah contends that Moore’s

testimony was prejudicial because of its at-times graphic descriptions,

particularly of oral copulation, Dr. Heuser’s testimony offered an even more

graphic and detailed description of the entire sexual assault and murder.” Pet.

App. 18. The court also observed that, even to the extent Moore’s testimony

16

was material on the issue of oral copulation, “a different outcome on the felony

of oral copulation would not affect Panah’s guilty verdict and death sentence.”

Id. at 25 (emphasis added).4

It is thus inaccurate for Panah to assert that the decision below “entirely

failed to address the impact” of the serology evidence on the verdict of death.

Pet. 23. Read in context, the court of appeals expressed its determination that

the serology evidence from Moore was not prejudicial in light of the testimony

from Dr. Heuser. Pet. App. 18; see id. at 25. That determination was correct

and does not warrant further consideration or review. Unlike in Cone v. Bell,

556 U.S. 449, 470 (2009), where the petitioner’s substance abuse was relevant

to statutory punishment criteria regarding whether his appreciation of the

wrongfulness of his act was impaired, the precise manner in which Panah

committed one of many sex acts against an eight-year old girl was not at issue

at the penalty phase. Indeed, while Panah was charged with the special

circumstance that he killed Parker during the commission of the offense of oral

copulation—one of the criteria for a defendant to become death-penalty

eligible—the jury found this special circumstance to be not true. Pet. App. 260.

“A reasonable interpretation of the jury’s rejection of this special circumstance

is that the jury was not entirely persuaded by Moore’s mixture theory.” Id. at

Panah petitioned for rehearing, arguing among other things that the opinion

had omitted “any discussion of the impact of the constitutional errors on the

penalty phase.” C.A. Dkt. 128 at 4. The court denied rehearing without

elaboration. Pet. App. 257.

4

17

19. Thus, “it is reasonable to conclude that [Moore’s] testimony had essentially

no effect on the jury’s decision making.” Id. at 22.

3. Panah also contends that the court of appeals applied the wrong

standards for determining materiality under Napue and prejudice under

Strickland. Pet. 25-34. He suggests that the court improperly limited its

inquiry to whether there would have been sufficient evidence to support the

jury’s verdicts absent the false evidence and deficient performance. Cf. Kyles,

514 U.S. at 434-435 (discussing materiality in the context of withheld

evidence). That is not correct.

a. The court of appeals began its analysis with the established standard

of materiality under Napue:

Materiality under Napue requires a “lesser showing of harm . . .

than under ordinary harmless error review.” But, after weighing

the effect of alleged Napue violations collectively, there still needs to

be a “reasonable likelihood that the false testimony could have

affected the judgment of the jury.” Thus, a Napue claim fails if,

absent the false testimony or evidence the petitioner still “received

a fair trial, understood as a trial resulting in a verdict worthy of

confidence.”

Pet. App. 16 (citations omitted). Later, the court recognized the established

standard of prejudice under Strickland:

To prevail, Panah must show . . . “a reasonable probability that, but

for counsel’s unprofessional errors, the result of the proceeding

would have been different.” “The likelihood of a different result,”

however, “must be substantial, not just conceivable.”

Id. at 22 (citations omitted). The court concluded that Panah was not entitled

to relief under either standard because “the State had a uniquely strong case”

18

and it was “inconceivable, even had defense counsel independently

investigated the serology and pathology evidence, that the jury would have

reached a different verdict.” Id.

As to the Napue standard, the court engaged in a comprehensive analysis

of the effect of Moore’s testimony on Panah’s trial. See Pet. App. 16-22. It

evaluated the strength of the prosecution’s case showing Panah’s guilt, which

included the fact that Parker’s body was found in Panah’s bedroom closet, and

Panah’s statements and conduct following Parker’s disappearance. Id. at 17.

It considered Dr. Heuser’s “impactful testimony” about the extensive injuries

suffered by Parker, which reflected a violent sexual assault. Id. at 17-18. It

then assessed the relative impact that Moore’s testimony had on the

prosecution’s case. Id. at 18-19. Moore testified that there were stains on the

tissue paper, bedsheet, and robe containing AB blood type that could have been

contributed by a person with A blood type, like Parker, and a person with B

blood type, like Panah. Id. at 18. Even so, Moore candidly admitted that his

serology evidence could not “establish any certainty,” but “can only

demonstrate consistency.” Id. Further, the prosecution acknowledged the

limitations of Moore’s testimony during closing argument:

Now the question is, did a person with AB blood leave . . . body fluids

such as blood, semen[,] and saliva, on the sheets, on the toilet paper,

on the robe. That is one interpretation. The other interpretation, of

course, is that you have two separate people, one of whom has type

A, and one has type B.

Id. at 19.

19

Moreover, the court of appeals observed that Moore’s testimony regarding

the possibility of a mixture of body fluids on the tissue and bedsheet involved

(at most) the charge that Panah committed the offense of oral copulation. Pet.

App. 19.

And the jury’s split verdict finding that Panah committed oral

copulation but that Parker’s murder was not committed during oral copulation

reflected that the jury “was not entirely persuaded by Moore’s mixture theory”

to begin with and was more persuaded by Dr. Heuser’s testimony, which

resulted in the jury finding Panah guilty of sodomy and lewd acts. Pet. App.

19.

The court also noted that Moore’s testimony was not critical to the

prosecution’s case, and that its exclusion would have made the prosecution

case only “marginal weaker.”

Pet. App. 21-22.

Given the overwhelming

evidence of Panah’s guilt and the jury’s rejection of the oral copulation special

circumstance, Moore’s testimony likely had little effect on the jury’s decision

making. Id. at 22. The court’s analysis illustrates that it weighed Moore’s

testimony along with the other evidence of Panah’s guilt, consistent with

Napue.

As to the prejudice standard under Strickland, the court of appeals

concluded that the state court could have reasonably determined that there

was “no ‘reasonable probability that, but for counsel’s unprofessional errors,

the result of the proceeding would have been different.’” Pet. App. 24. The

court of appeals explained that even if counsel had investigated the serology

20

and pathology evidence, it was not plausible that it would have led to a

different outcome. Such an investigation would have at most exposed some

weaknesses in Moore’s and Dr. Heuser’s testimony, which defense counsel

already brought out at Panah’s trial. Id. at 25-26. It would not have produced

any exculpatory evidence nor any evidence that refuted the State’s strong case

against Panah. Id. at 24-25; see id. at 26-27 (noting that this Court’s reasoning

in Richter, 562 U.S. at 102, “is almost entirely applicable” to Panah’s

ineffective-assistance claim because the post-conviction evidence did not

exonerate Panah and defense counsel already raised concerns about the State’s

experts before the jury).

To be sure, the court acknowledged that Panah’s post-conviction evidence

could have established that Parker was not a contributor to the tissue paper

and could have been used to challenge Dr. Heuser’s testimony on the time and

cause of Parker’s death. Pet. App. 25-26. But the court also noted that Panah’s

post-conviction evidence would not have refuted Moore’s testimony regarding

the bedsheet and robe; would not have rebutted Dr. Heuser’s testimony

regarding Parker’s horrific and extensive injuries; and would have confirmed

that Parker was killed during the sexual assault. Id.

b. Panah argues that, in addition to the DNA results on the tissue paper

excluding Parker, the DNA evidence “conclusively shows no evidence of a

mixture on the bedsheet, with two of those five stains conclusively excluding

the victim as contributor.” Pet. 29. That is not entirely accurate. According

21

to Panah’s post-conviction evidence, Parker was eliminated as a contributor to

two of five stains on the bedsheet, and Panah was included as a possible

contributor to the same two stains. Pet. App. 464. But the post-conviction

DNA evidence showed nothing regarding the other three bedsheet stains and

thus did not impugn Moore’s serology testimony about the bedsheet, which did

not discuss the serology results on a stain-by-stain basis.

With respect to the significance of challenging Parker’s time of death,

Panah argues (Pet. 30) that forensic pathologist Dr. Gregory Reiber, one of the

post-conviction experts, would have placed Parker’s time of death “a significant

number of hours later” than noon to 1:00 p.m. (as Dr. Heuser opined, see Pet.

App. 470), and at a time when Panah was not at the apartment. Under this

theory, Parker would have been killed and her body placed in Panah’s closet

while the police were stationed outside of Panah’s apartment—and in between

the series of searches of Panah’s apartment.5 Further, to accept this theory,

the jury would have also had to ignore Panah’s inculpatory statements to his

co-worker, Rauni Campbell, in which he admitted doing something bad

involving Parker and stating that Parker was dead, all while police and others

searched for Parker. Pet. App. 5. Panah also would have had to ask the jury

Contrary to Panah’s assertion, the police did not search all the suitcases in

Panah’s closet during earlier searches. The police had not previously searched

the suitcase where Nicole’s body was found. As the police explained, earlier

searches were focused on finding a missing child, not a dead child, and they

believed that the suitcase where Nicole’s body was found was too small to

contain a body. D. Ct. Dkt. 45, Lodged Doc. B at 1672, 1923-1924.

5

22

to draw no adverse inference from his failure to produce evidence of the alleged

third-party killer’s blood type and DQ Alpha markers to compare to the

serology and DNA results on the tissue, bedsheet, and robe, despite its

availability. See id. at 6.

Panah asserts that his post-conviction evidence demonstrates that

Parker did not die as a result of a sexual assault. Pet. 32-33. As the court of

appeals noted, however, Panah’s post-conviction expert did not dispute that

Parker died during the sexual assault and did not offer a “cause of death [that]

‘would have been no more palatable to the jury.”’ Pet. App. 26. Indeed, Dr.

Reiber acknowledged that Parker died during the sexual assault, opining that

“the specific cause of death is less clear (than the manner of death: homicide),

but in the setting of a sexual assault, some type of asphyxia death is likely.”

Pet. App. 471. He further explained that “other types of asphyxia death, such

as suffocation and/or ‘Burking’—pressure of a large person’s body on a smaller

person’s chest causing restrictions in breathing—remain possible, and the

facial bruising and areas of contusion on the torso support either or both in

combination.” Id. Under these circumstances, the court of appeals correctly

concluded that further challenging the cause of Parker’s death would not have

been fruitful. Id. at 26.

Panah also suggests that the courts below erred by assessing the

cumulative effect of the false evidence and deficient performance under the

prejudice standard in Strickland rather than the materiality standard in

23

Napue. Pet. 27-34. He argues that applying the Strickland standard in this

context is contrary to Kyles v. Whitley, 514 U.S. 419 (1995). But this Court did

not address the cumulative effect of false evidence and deficient performance

in Kyles. Rather, the Court addressed only a prosecutor’s duty to disclose

evidence favorable to the defense under Brady v. Maryland, 373 U.S. 83 (1963).

See Kyles, 541 U.S. at 421, 436. This Court ordered a new trial “[b]ecause the

net effect of the evidence withheld by the State in this case raises a reasonable

probability that its disclosure would have produced a different result.” Id. at

421-422 (emphasis added); see id. at 441. Because that standard is identical

to the one applied below and in Strickland, there is no conflict with Kyles.

4. Finally,

Panah

contends

that the

Ninth

Circuit’s

appellate

commissioner violated circuit rules by referring Panah’s request for

reconsideration of the order denying substitute counsel to the merits panel

rather than to the motions panel under Ninth Circuit Rule 27-10. There was

no such violation. Circuit Rule 27-7 provides that the court may delegate

authority to an appellate commissioner to decide motions, among other things.

Circuit Rule 27-10 further provides that a motion to reconsider an order issued

by an appellate commissioner under Rule 27-7 should be “referred to a motions

panel.” But an appellate commissioner also has discretion to refer any motion

to the merits panel in the first instance, regardless of the relief requested. See

Ninth Circuit General Order 6.3.e. If a case has been internally assigned to a

merits panel, circuit procedure requires that the motions panel contact the

24

merits panel, because the merits panel possesses “responsibility for all further

proceedings in the case.” Ninth Circuit General Order 3.3.e. That procedure

is not unusual. See, e.g., Third Circuit, I.O.P. 10; Fourth Circuit, Local Rule

27(e); Fifth Circuit, Rule 27, I.O.P; United States v. Kelly, 749 F.2d 1541, 1552

(11th Cir. 1985) (considering a motion to substitute appellate counsel in

opinion addressing the merits of defendant’s appeal).

25

CONCLUSION

The petition for a writ of certiorari should be denied.

Dated:

June 17, 2020

Respectfully submitted

XAVIER BECERRA

Attorney General of California

MICHAEL J. MONGAN

Solicitor General

LANCE E. WINTERS

Chief Assistant Attorney General

JAMES WILLIAM BILDERBACK II

Senior Assistant Attorney General

RYAN B. MCCONNELL

Deputy Solicitor General

DANA M. ALI

Supervising Deputy Attorney General

/s/ Toni R. Johns-Estaville

TONI R. JOHNS-ESTAVILLE

Deputy Attorney General

Counsel For Respondent