Appendix — Calderon v. McLain

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Rosert Cruz McLain,

Petitioner-Appellee, No. 95-99020

Vv D.C. No.

we CV-89-03061-JGD

ARTHUR CALDERON, Warden,

Respondent-Appellant. OPINION

Appeal from the United States District Court

for the Central District of California

John G. Davies, District Judge, Presiding

Argued and Submitted

August 22, 1997——-Pasadena, California

Filed January 26, 1998

Before: Warren J. Ferguson, Cynthia Holcomb Hall* and

Alex Kozinski, Circuit Judges.

Opinion by Judge Kozinski; Concurrence by

Judge Ferguson

SUMMARY

Criminal Law and Procedure/Jury Instructions

The court of appeals affirmed a judgment of the district

court. The court held that a “Briggs” jury instruction that

omits a statutory limitation on a governor’s power to com-

*Judge Hall does not join in footnote 3 of the opinion.

669

670 McLain v. CALDERON

mute a sentence of life without parole (LWOP) supports

reversal of a death sentence.

The Supreme Court held in California v. Ramos, 463 U.S.

992 (1983), that in a capital case, a state trial court may use

a. “Briggs” instruction to inform a jury that the state’s gover-

nor can commute an LWOP sentence to a lesser sentence,

possibly including parole. In a California capital prosecution

of a defendant with two prior felony convictions, the Gover-

nor may grant such a commutation only if four justices of the

California Supreme Court so recommend.

Hamilton v. Vasquez, 17 F.3d 1149 (9th Cir. 1994), held

that a California trial court violated Ramos by incorrectly sug-

gesting to a jury that Hamilton could be paroled after serving

only 17 years of a life sentence. The court also criticized the

instruction because it diverted the jury’s attention from miti-

gation evidence to commutation procedures.

Appellee Robert McLain had two prior felony convictions

when he was charged in California state court with rape and

murder. The trial court gave a Briggs instruction, but did not

advise the jury that four justices had to recommend executive

commutation for the governor to grant it. After exhausting his

state-court remedies, McLain sought federal habeas corpus

relief.

The district court set aside McLain’s death sentence on the

ground that the trial court erroneously excluded expert testi-

mony regarding his future behavior. The State appealed.

[1] This case was materially indistinguishable from

Hamilton. McLain had two prior felonies and the jury was

given essentially the same Briggs instruction. The judge did

not advise the jury that the governor could exercise his clem-

ency powers only on the recommendation of four justices.

This made McLain’s ifistruction substantially more mislead-

ing than Hamilton’s because the jury would no doubt have

rt ies

McLain v. CALDERON 671

believed that the governor acting alone could commute

McLain’s sentence. Moreover, the instruction improperly

focused the jury’s attention on commutation procedures rather

than on the question of mitigation. Under Hamilton’s author-

ity, the district court’s judgment had to be affirmed.

Judge Ferguson concurred separately, noting that McLain

was also entitled to habeas corpus relief on two grounds not

addressed by the lead opinion.

COUNSEL

Keith H. Borjon, Deputy Attorney General, Los Angeles, Cal-

ifornia, for the respondent-appellant.

Robin M. Shapiro, Philadelphia, Pennsylvania, for the

petitioner-appellee.

OPINION

KOZINSKI, Circuit Judge.

Robert Cruz McLain has a history of raping and sometimes

killing young women. He was convicted and sentenced to

death for one of those killings; the California Supreme Court

affirmed. People v. McLain, 46 Cal. 3d 97 (1988), cert.

denied, 489 U.S. 1072 (1989). Having exhausted his state

court remedies, McLain filed a federal habeas petition raising

28 claims for relief.’ The district court rejected 27 of those

"McLain’s case is not covered by the Antiterrorism and Effective Death

Penalty Act (AEDPA), Pub. L. No. 104-132, Title I, 110 Stat. 1214 (Apr.

24, 1996), amending 28 U.S.C. §§ 2244 and 2253-55 and further codified

at 2261-66. Robbins v. Smith, 125 F.3d 831, 833 (9th Cir. 1997); see

Lindh v. Murphy, 117 S. Ct. 2059, 2067-68 (1997).

672 McLaww v. CALDERON

claims, but set aside McLain’s death sentence after finding

that the exclusion of expert psychiatric testimony predicting

his future behavior violated Skipper v. South Carolina, 476

U.S. 1 (1986).

The state appeals. McLain counters by defending the dis-

trict court’s Skipper ruling, and also by arguing that the death

sentence was invalid on one of two other grounds: that his

trial counsel was ineffective in failing to present sufficient

mitigating evidence to the jury and that the jury instructions

violated Hamilton v. Vasquez, 17 F.3d 1149 (9th Cir. 1994).

Because we find McLain’s Hamilton argument persuasive, we

need not consider the other issues presented.°

7In truth, McLain asks us to consider all of his 25 remaining claims of

error by purporting to incorporate his habeas petition and trial briefs into

his brief before us. Appellee Br. pp. 3-4. However, “[a]n issue not dis-

cussed in a brief, although mentioned in the Statement of Issues, is

deemed to be waived.” Resorts Int'l v. Lowenschuss (In re Lowenschuss),

67 F.3d 1394, 1402 (9th Cir. 1995), cert. denied 116 S. Ct. 2497 (1996).

Space was not the problem. McLain had 75 pages but used only 31.

*The state argues that we may not consider Hamilton because McLain

did not file a timely cross-appeal. The Deputy Attorney General who han-

dled this case is apparently unaware of the long-standing rule that we may

affirm the judgment below on any basis supported by the record. See, e.g.,

Helvering v. Gowran, 302 U.S. 238, 245 (1937) (“{I]f the decision below

is correct, it must be affirmed, although the lower court relied upon a

wrong ground or gave a wrong reason.”); United States v. Fonseca-

Martinez, 36 F.3d 62, 65 (9th Cir. 1994) (“The court of appeals may

affirm so long as there exists any ground, fairly supported in the record,

that supports the district court’s ruling.”).

We are troubled by the frequency with which the California Attorney

General’s office manifests unfamiliarity with such elementary principles

of federal procedure. A prime example of this can be found by listening

to the oral argument tape in this case, available from the clerk of our court.

Given the number of cases, including death cases, the Attorney General

of California litigates in the courts of our circuit, this is decidedly unhelp-

ful.

McLain v. CALDERON 673

; II

: In California v. Ramos, 463 U.S. 992 (1983), the Supreme

‘

| court approved the use of what’s known as a Briggs instruction.‘

: This instruction informs a jury charged with choosing

| between imposing a death sentence and life without parole

; (LWOP) of the governor’s power to commute LWOP to a

lesser sentence, possibly including parole. The Court found

that “(t]he Briggs Instruction thus corrects a misconception

and supplies the jury with accurate information for its deliber-

ation in selecting an appropriate sentence.” Jd. at 1009.

Ramos dealt with the Briggs instruction in a case where the

governor did, indeed, have the unilateral power to commute

the sentence. The governor of California, however, does not

have such power in all cases. Where the defendant has two

prior felonies, the governor may commute the sentence only

upon the written recommendation of four justices of the Cali-

fornia Supreme Court. See Cal. Penal Code §§ 4802, 4813,

4852. In Hamilton we considered a petitioner in that situation.

The jury there was given the standard Briggs instruction, fol-

lowed by a lengthy modification.* The modification (cor-

“The plain-vanilla Briggs Instruction reads:

You are instructed that under the State Constitution, a Gover-

nor is empowered to grant a reprieve, pardon, or commutation of

a sentence following conviction of a crime.

Sa i eNOS ie ail

Under this power a Governor may in the future commute or

modify a sentence of life imprisonment without possibility of

parole to a lesser sentence that would include the possibility of

parole.

Ramos, 463 U.S. at 995-96.

It was incorporated into the California Penal Code as a result of a 1978

voter initiative. See id. at 995 n.4. However, the California Supreme Court

. held that the instruction violated the California Constitution, People v.

: Ramos, 37 Cal. 3d 136, 159 (1984), and it is no longer given. Both Hamil-

ton and McLain were sentenced before the California decision.

*The instruction in Hamilton read as follows:

| |

674 McLain v. CALDERON

rectly) informed the jury about the limitation on the

Governor’s clemency authority, but then (incorrectly) went on

to suggest that the defendant might in fact be put on probation

after serving only about 17 years of a life sentence. According

to Hamilton, this violated Ramos’s holding that the jury must

be given accurate information as to the likelihood that the

defendant will be released from incarceration if he were sen-

tenced to LWOP. 17 F.3d at 1162. In Hamilton we also criti-

You are instructed that under the state constitution, a governor

is empowered to grant a reprieve, pardon or commutation after

sentence following conviction of a crime. Under this power a

governor may in the future commute or modify a sentence of life

imprisonment without possibility of parole to a lesser sentence

that would include the possibility of parole.

This is subject to the requirement that, in the case of any per-

son twice convicted of a felony, a commutation or modification

may not be granted absent the written recommendation of at least

four justices of the California Supreme Court. Further, a life sen-

tence requires a minimum incarceration of 25 years less one-third

off for good time credits before parole may be considered by the

proper authorities. You are now instructed, however, that the

matter of a possible commutation or modification of sentence is

not to be considered by you in determining the punishment for

Mr. Hamilton. You must not speculate as to whether such com-

mutation or modification would ever occur. It is not your func-

tion to decide now whether this man will be suitable for parole

at some future date. So far as you are concerned, you are to

decide only whether this man shall suffer the death penalty or

whether he shall be permitted to remain alive. If upon consider-

ation of the evidence you believe that life imprisonment without

possibility of parole is the proper sentence, you must assume that

the Governor, the Supreme Court, and those officials charged

with the operation of our parole system will perform their duty

in a correct and responsible manner, and that Mr. Hamilton will

not be paroled unless he can safely be released into society. It

would be a violation of your duty as jurors if you were to fix the

penalty at death because of a doubt that the Governor and other

officials will properly carry out their responsibilities.

17 F.3d at 1160, 1161-62.

McLaw v. CALDERON

cized the instruction on the ground that it “diverted [the jury]

from [its] task by having its attention focused on commutation

procedures rather than the significant mitigating evidence

defense counsel introduced at the penalty phase.” /d. at 1162-

63. We therefore vacated the death sentence.

[1] Our case is materially indistinguishable from Hamilton;

the state has elsewhere admitted as much.* McLain, like Ham-

ilton, had two prior felonies. And the jury in Mclain’s case

was given essentially the same modified Briggs instruction.’

“In its certiorari petition in Hamilton, the state, referring inter alia to

McLain’s case, stated as follows: “While California no longer requires

instruction of the jury with the penalty phase instruction . . . there remain

several capital cases, which are still pending federal habeas review,

wherein the instruction to the jury was identical to the instruction given

in this case.”

’The instruction reads as follows:

You are instructed that under the State Constitution a governor

is empowered to grant a reprieve, pardon, or commutation after

sentence following conviction of a crime. Under this power, a

governor may in the future commute or modify a sentence with-

out — of life without possibility of parole to a lesser sentence,

which would include the possibility of parole.

You are further instructed that such power by a governor to

commute or modify a sentence is not to be considered by you in

determining whether the defendant should be sentenced to death

or life imprisonment without the possibility of parole.

You may not speculate as to if or when a commutation or mod-

ification would or would not be granted to the defendant. It’s not

your function to decide now whether the defendant will receive

such a commutation or modification at some future date. So as far

as you are concerned, you are to decide only whether the defen-

dant should suffer the death penalty or should be permitted to

remain alive under the sentence of life imprisonment without the

possibility of parole.

If upon consideration of the evidence and instructions you con-

clude that life imprisonment without the possibility of parole is

the proper sentence, you must assume that the governor will per-

form his duty in a correct and responsible manner and will not

676 McLain v. CALDERON

There are only two difference between the instruction given

in our case and that in Hamilton: First, the judge here did not

advise the jury that the governor could exercise his clemency

powers only upon the recommendation of four justices. This

makes McLain’s instruction substantially more misleading

than Hamilton’s because the jury here would no doubt have

believed that the governor, acting alone, could commute

McLain’s sentence. Second, the instruction here did not refer

to the possibility that defendant would be released after serv-

ing only 17 or so years. This avoided one of the problems

with the instruction in Hamilton, but did nothing to negate the

impression that the governor, acting alone, could reduce any

LWOP sentence the jury might impose, and thus that McLain

might someday be released unless he were given the death

penalty. Moreover, the instruction here, like that in Hamilton,

improperly focused the jury’s attention on commutation pro-

cedures rather than on the question of mitigation. While we

might not decide this question the same way were we consid-

ering it in the first instance, Hamilton is binding on us as the

law of the circuit. Under its authority we must affirm the dis-

trict court’s judgment setting aside McLain’s death sentence.

AFFIRMED.

FERGUSON, Circuit Judge, concurring.

I concur in affirming the district court’s grant of habeas

corpus relief to Robert Cruz McLain on the basis of Hamilton

commute this defendant’s sentence unless convinced that he

should be eligible for parole and can be safely released into soci-

ety, in a correct and responsible manner.

It would be a violation of your duty as jurors if you were to fix

the penalty at death because of a doubt that the governor will

properly carry out his responsibilities.

RT Augmentation 120-21.

ee mn aN EN Nee MT Ey

McLain v. CALDERON 677

error. I write separately because two additional bases also

support the grant of habeas relief. The exclusion of testimony

regarding McLain’s ability to adapt to life in prison violates

Skipper v. South Carolina, 476 U.S. 1 (1986). The California

Supreme Court and the district court were correct in finding

Skipper error. People v. McLain, 757 P.2d 569, 575 (Cal.

1988); McLain v. Calderon, 1995 WL 769176, *71 (C.D. Cal.

19©5). In addition, McLain received ineffective assistance of

counsel, which forms a third basis for habeas relief.

I. Exclusion of Defense Testimony

A. Eighth Amendment Violation

McLain sought to introduce the expert testimony of Dr.

Dean Clair, a prison staff psychologist. Dr. Clair had treated

McLain, reviewed McLain’s prison records, and interviewed

McLain for litigation purposes. Dr. Clair was to testify that

given a life sentence instead of death, McLain would likely

adjust well to prison, and would not pose a threat to prison

staff or fellow inmates. McLain v. Calderon, 1995 WL

769176, *55. However, the trial court excluded Dr. Clair’s

testimony, thus violating the mandates of the Eighth and

Fourteenth Amendments as interpreted by the Supreme Court

in Skipper.

The Eighth Amendment requires that the sentencer in a

capital case must be allowed to consider “as a mitigating fac-

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

of the circumstances of the offense that the defendant proffers

as a basis for a sentence less than death.’ ” Skipper, 476 U.S.

at 4 (quoting Eddings v. Oklahoma, 455 U.S. 104, 110 (1982);

Lockett v. Ohio, 438 U.S. 586, 604 (1978)(plurality)). In

Skipper, the Court applied this general rule to “a defendant’s

disposition to make a well-behaved and peaceful adjustment

to life in prison,” Skipper at 7. Stated differently, “evidence

that the defendant would not pose a danger if spared (but

incarcerated)” must be allowed. Jd. at 5. Here, McLain’s right

678 McLalIn v. CALDERON

to introduce Dr. Clair’s mitigating evidence was clearly vio-

lated.

B. Due Process Violation

In Gardner v. Florida, 430 U.S. 349, the Supreme Court

held that it was a violation of due process to apply a sentence

of death “on the basis of information which [the defendant]

had no opportunity to deny or explain.” Jd. at 362. In Skipper,

the Court unanimously stated: “Where the prosecution specif-

ically relies on a prediction of future dangerousness in asking

for the death penalty, it is not only the rule of Lockett and

Eddings that requires that the defendant be afforded an oppor-

tunity to introduce evidence on this point; it is an elemental

due process requirement . . .” Skipper, 476 U.S. at 5,n. 1. The

prosecution in this case relied, albeit impliedly, on the argu-

ment that McLain would pose a persistent threat to prison

safety if incarcerated for life. The prosecution submitted evi-

dence that McLain twice attempted to escape from prison,

once restrained a prison guard using a homemade knife, and

repeatedly threatened that given the opportunity, he would act

violently. In closing argument, the prosecutor underscored

this evidence, contending that it showed McLain to be “far

from a model prisoner.” The prosecution thus created the

inference that McLain would pose a danger if sentenced to

life imprisonment. The Due Process Clause, as interpreted in

Gardner and Skipper, entitles McLain to rebut this inference.

C. Prejudice

On collateral appeal, relief is granted for a constitutional

error where it “ ‘had [a] substantial and injurious effect or

influence in determining the jury’s verdict.’” Brecht v.

Abrahamson, 507 U.S. 619, 637 (1993)(quoting Kotteakos v.

United States, 328 U.S. 750, 76 (1946)). If the error does not

rise to that level, it is considered harmless. Bonin v. Calderon,

59 F.3d 815, 824 (9th Cir. 1995), cert. denied, __ U.S. __,

116 S.Ct. 718 (1996). “When a federal judge in a habeas pro-

Sila Cie To ecionneteis ria mebard Say

McLain v. CALDERON 679

ceeding is in grave doubt as to whether a trial error of federal

law had a ‘substantial and injurious effect or influence in

determining the jury’s verdict,’ that error is not harmless.

And, the petitioner must win.” O’Neal v. McAninch, 513 U.S.

432, 436 (1995).

Dr. Clair would have had considerable credibility with the

jury because he was employed by the state department of cor-

rections, and not in any way biased in favor of McLain. His

expertise in the assessment and treatment of prisoners further

augmented his credibility. According to expert testimony

presented to the district court, Dr. Clair’s testimony would

have been crucial to the jury, as future behavior in prison is

a major consideration in the penalty phase of capital cases.

Contrary to the state’s argument, other evidence and testi-

mony in this case do not duplicate Dr. Clair’s testimony. The

state contends that the submission of McLain’s prison records

supplanted the need for an expert opinion based in part on

those same records. Without expert interpretation, however,

these records are considerably less persuasive. Moreover, Dr.

Clair relied on his first hand knowledge of McLain, in addi-

tion to records, to prepare his testimony.

Similarly, the state argues that other witness testimony

effectively substituted for Dr. Clair’s opinion. Each of these

witnesses, however, lacked either Dr. Clair’s credibility,

expertise, or foundation of knowledge. Furthermore, only one

of these witnesses mentioned that McLain would adapt well

to life in prison, and this was not the thrust of his testimony,

but only a passing remark.

The trial court did instruct the jury to disregard character

evidence of future dangerousness in imposing the death pen-

alty. However, this instruction did not protect McLain’s right

to offer evidence of future adaptability to prison. Thus, the

prosecution’s evidence went unrebutted, preventing the jury

Ferma

—

680 McLain v. CALDERON

from considering McLain’s future behavior as a basis for

leniency.

While the facts of McLain’s brutal crimes are significant

aggravating factors, the district court found the mitigating evi-

dence to be significant. McLain v. Calderon, 1995 WL

769176, *67-68.' In this case, the aggravating evidence did

not so overwhelm the mitigating evidence to render harmless

the exclusion of Dr. Clair’s testimony.

In view of the credibility, persuasiveness, and distinct

nature of Dr. Clair’s testimony, as well of the significance of

the mitigating evidence, we should affirm the district court’s

conclusion that the exclusion of Dr. Clair’s testimony had a

substantial and injurious effect on the jury.

Il. Ineffective Assistance of Counsel

A. Failure to Investigate

McLain has shown that his attorney’s performance was

deficient and that it caused him prejudice. This constitutes

ineffective assistance of counsel under Strickland v. Washing-

ton, 466 U.S. 668, 687-90 (1984); Hendricks v. Vasquez, 974

F.2d 1099, 1109 (9th Cir. 1992). To establish prejudice, “(t]he

defendant must show that there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different. A reasonable probabil-

ity is a probability sufficient to undermine confidence in the

outcome.” Strickland, 466 U.S. at 694.

Specifically, “a particular decision not to investigate must

be directly assessed for reasonableness in all the circum-

stances, applying a heavy measure of deference to counsel’s

‘Evidence of McLain’s deprived and violent childhood and his resulting

mental disorders was found to be mitigating and are discussed in Part II,

infra.

RS Leen ee ee ae

McLain v. CALDERON 681

judgments.” Strickland, 466 U.S. at 691. Here, McLain’s

attorney, Steve Pell, failed to: 1) discover all relevant mitigat-

ing evidence; 2) develop a social history based on all avail-

able records; or 3) provide McLain’s mental health expert

with all available social history records. Evidence of

McLain’s childhood sexual abuse, diagnosed brain damage,

multiple head injuries, physical abuse, abject poverty,

attempted suicides, and lack of treatment was all omitted. Pell

did call McLain and two other members of McLain’s family

to give testimony regarding McLain’s background. Dr.

Jerome Evans also testified, regarding McLain’s mental con-

dition. However, Pell never obtained releases to review

McLain’s confidential records. Therefore, Pell’s decision to

present this testimony was not based on adequate investiga-

tion. As the district court stated: “Pell’s failure to investigate

this mitigating evidence cannot be construed as reasonable

because he did not consciously explore the possibility of pre-

senting it.” McLain v. Calderon, 1995 WL 769176, *100

(C.D. Cal.). Pell’s failure to investigate and present important

mitigating evidence, taken alone, constitutes ineffective assis-

tance of counsel.

CONCLUSION

I agree with the majority that Hamilton error merits a grant

of habeas corpus relief in this case. McLain’s defense was

further harmed by the exclusion of persuasive expert testi-

mony and inadequate investigation by counsel. I write sepa-

rately to note that these errors provide additional bases upon

which to grant habeas corpus relief and CONCUR in the opin-

ion.

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The summary, which does not constitute a part of the opinion of the court, is copyrighted

Appendix B

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ROBERT CRUZ McLAIN,

ARTHUR CALDERON, et al.,

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

Petitioner, CASE NO. CV 89-3061 JGD

MEMORANDUM OPINION

GRANTING IN PART AND

DENYING IN PART

PETITION FOR WRIT OF

HABEAS CORPUS

Vv.

Respondents,

Petitioner Robert Cruz McLain is an inmate on death

He invoked the jurisdiction of this Court by v

requesting, pursuant to 21 U.S.C. s 848(q), appointment

of counsel to assist him in preparing and litigating a

petition for writ of habeas corpus. Currently before the

Court is his Third Amended Petition filed on December

The Court held an evidentiary hearing over the

course of five days in April and May 1993. At the

evidentiary hearing witnesses were called and exhibits

were received concerning the petitioner’s second, third,

fourth, fifth, eighth, and twenty-second claims for relief.

Over the course of three days in February 1994, the Court

held a second evidentiary hearing concerning the

petitioner’s twenty-eighth claim for relief. At the second

evidentiary hearing witnesses were called and exhibits

were received.

The Court has considered the testimony and exhibits

at the evidentiary hearings, relevant portions of the state

court record, the arguments of counsel, and the papers,

pleadings and records on file herein. Based thereon, the

Court makes the following findings of fact and conclusions

of law:

3 FACTS

In 1971, McLain was convicted of raping and

molesting Jodi Whitman and her friend and attempting to

rape and molest a third person, Sherrie Yunker in

Ventura, California. McLain was released from prison in

1978 and was living in Northern California. In November

1979, McLain returned to Ventura accompanied by his

16-year-old nephew Teddy Willis and Willis’ friend Lloyd

Ketcherside.

The threesome went to Whitman’s apartment and

attempted to break in but were scared away. They picked

up another woman, Joni Kelley; she was later raped and

murdered. On the way back to Northern California, their

car broke down. They stopped another person, Diana

Bazargani, murdered her and stole her car.

McLain was convicted of murdering Bazargani at a

trial in Solano County. After a jury trial on the

appropriate penalty, McLain was sentenced to life

imprisonment without the possibility of parole.

McLain was then tried for the Kelley murder in

Ventura. The jury convicted him of rape and murder and

sentenced him to death. The Ventura jury also convicted

McLain of several other attempted crimes and

conspiracies in connection with the events at Whitman’s

apartment.

For the crimes relating to the attempted break-in at

Whitman’s apartment, the Ventura trial court sentenced

McLain to slightly over 50 additional years to run

consecutively to each other, consecutive to the sentence

on the Kelley murder charge, and consecutive to the

unparolable life sentence in Solano County arising from

the Bazargani murder. Accepting the jury’s verdict, the

Ventura trial court sentenced McLain to death for the

murder of Joni Kelley.

The habeas petition currently before the Court

challenges the constitutionality of the Ventura conviction

and sentence of death.

The California Supreme Court affirmed the verdict

and sentence. People v. McLain, 46 Cal.3d 97, 249 Cal.

Rptr. 630, 757 P.2d 569 (1988). Thereafter, it denied

McLain’s petition for rehearing. After the United States

Supreme Court denied McLain’s petition for writ of

certiorari, McLain v. California, 109 S. Ct. 1356 (1989),

the California Supreme Court denied McLain’s petition

for writ of habeas corpus.

Federal proceedings were initiated in May 1989 and

new counsel were appointed three weeks later. After a

return to state court for exhaustion purposes, McLain filed

a First Amended Petition on August 28, 1991. The Court

allowed McLain to file a Second Amended Petition in

March 1993.

The Court held an evidentiary hearing on McLain’s

claims relating to the jailhouse informants who testified at

McLain’s trial, and the failure of McLain’s trial counsel,

Steve Pell, to develop evidence concerning McLain’s brain

damage and abuse as a child. The hearing was Held April

13 through 16, April 29, and May 4, 1993.

Shortly after post-hearing briefing was completed, but

while the case was still under submission, McLain sought

permission to file a Third Amended Petition to include a

claim of jury misconduct that he had only recently

discovered. Finding the claim exhausted and not

procedurally barred -- due to the State’s practice of

inconsistently invoking timeliness as a procedural default

in habeas -- the Court allowed McLain to file his Third

Amended Petition on December 6, 1993. The Court

scheduled a hearing on the newly-added jury misconduct

claim. The second hearing was held on February 3, 11,

and 25, 1994.

This Memorandum Opinion contains the Court’s

findings of fact and conclusions of law regarding all claims

raised in the pleadings before this Court.

PART I -- PRELIMINARY PROCEDURAL MATTERS

I. EXHAUSTION

The Attorney General contends that several of

McLain’s claims are unexhausted. Because exhaustion is

a procedural defect that could prevent the Court from

considering any of the claims in the current petition, Rose

v. Lundy, 455 U.S. 509, 514 (1982), the Court addresses

the exhaustion disputes prior to addressing the merits of

any of the claims.

A. Respondent Has Waived _Any __ Purported

Exhaustion Defects

The Court finds Respondent’s exhaustion arguments

to be without merit for two separate and independent

reasons. First, the Court finds that Respondent has waived

the defense of exhaustion by failing to raise it at an earlier

stage of the proceedings. Not only was this case held in

abeyance for 18 months during 1990 and 1991, but

McLain also filed a supplemental state habeas petition

contemporaneous with ongoing federal proceedings in late

1993. The Attorney General purports to have reserved his

right to assert an exhaustion defense at a later time. He

purportedly did so, however, by burying this contention in

a legal memorandum appended to his Answer. The

Attorney General did not move to dismiss the petition or

any of the claims or to have federal proceedings held in

abeyance pending further exhaustion. Nor did he

otherwise bring the alleged exhaustion defects to the

Court’s attention during any of the numerous status

conferences or motion hearings. The Attorney General

never suggested that either of the evidentiary hearings

would be inappropriate on the ground that the petition

contained unexhausted claims. Not until the Attorney

General filed his comprehensive briefing on the claims

that were not the subject of the first evidentiary hearing

-- in October 1993 -- did the Attorney General formally

seek any relief based on the alleged exhaustion defect.

The issue of exhaustion should have been raised and

insisted upon long ago. "The appropriate time to assess

whether a prisoner has exhausted his state remedies is

when the federal habeas petition is filed, not when it

comes on for hearing in the district court." Brown v.

Wells, 11 F.3d 914, 915 (9th Cir. 1993). There is a

compelling reason for this. Exhaustion defects could

render all proceedings in the case a nullity. Lundy, 455

US. at 520-21. The Attorney General cannot wait until

the end of the case, opting to insist upon exhaustion only

after it appears that the federal court may reach a

decision on the merits adverse to the State. Granberry v.

Greer, 481 U.S. 129, 134 (1987). Allowing delayed

invocation of the exhaustion defense would invite abuse by

the parties.

After the case has been in federal court for so many

years and two evidentiary hearings have been held, it is

too late to complain of timing defects. Any exhaustion

problems could have been cured long ago. The Court

finds that Respondent has waived any defense based on

exhaustion defects.

///

B. Respondent Has Waived the Defense of

Procedural Bar

The Attorney General attempts to capitalize on the

delay that it has in part created by failing to assert its

exhaustion defense earlier. The Attorney General

contends that, due to the late date by which any

supplemental exhaustion petition would be presented, the

state supreme court would now likely hold any previously

unpresented claims as procedurally defaulted under the

state’s timeliness rules.

Whether a claim is in procedural default, however, is

determined as of the date the federal petition was filed.

Brown, 11 F.3d at 914. This case has twice returned to the

state court for exhaustion purposes. There is no clear

indication that the state courts would have unquestionably

rejected the allegedly "new" aspects of the challenged

claims on the basis of timeliness had those "modifications"

been included in one of the earlier state habeas pet.tions.

The Court finds that Respondent has waived the

defense of procedural default and bar.

C. Respondent’s Substantive Exhaustion Arguments

Lack Merit

1. Eighth Claim

The Attorney General argues that, to the extent

Claim 8 is founded upon the Fifth and Sixth Amendments,

the claim was never exhausted and is now procedurally

barred. A claim cannot be procedurally barred if it has

been properly exhausted -- ie., if it has been fairly

presented to the state’s highest court. A federal claim "is

fairly presented if the petitioner has described the

operative facts and legal theory upon which his claim is

based." Tamapua v. Shimoda, 796 F.2d 261, 262 (9th Cir.

1986).

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McLain fairly presented, on direct appeal, his claim

that the trial court violated his Fifth and Sixth

Amendment rights by failing to instruct the jury on the

unreliability of informant testimony. The state court

denied this claim on the merits. McLain, 46 Cal.3d at 107.

The claims were properly exhausted and McLain is not

barred from pursuing these claims in this federal habeas

proceeding.

2. Twelfth Claim

McLain fairly presented his claim that the retroactive

application of People v. Anderson, 43 Cal.3d 1104, 240

Cal. Rptr. 585 (1987) would violate his rights to due

process and equal protection, the Ex Post Facto Clause,

and the Eighth Amendment. The Attorney General's

contention that McLain should have presented these

arguments in his briefs on direct appeal is frivolous.

Anderson was not even decided until after McLain’s direct

appeal was fully briefed and argued. While a petition for

rehearing might not ordinarily be the appropriate method

for presenting a new claim of error, McLain cannot be

faulted for failing the contest the retroactivity of a law that

did not yet even exist. McLain challenged the retroactive

application of Anderson at his first opportunity to do so.

The claim was properly presented by way of petition for

rehearing. Cf. Castille v. Peoples, 489 U.S. 346, 351

(1989).

In his petition for rehearing, McLain argued that

retroactive application of Anderson would be unfair and

a violation of the Ex Post Facto Clause. "Unfairness" is

the touchstone of due process which, in turn, is the focus

of the Fifth and Sixth Amendment claims presented here.

A petitioner need not cite "book and verse on the federal

constitution” in order to satisfy exhaustion. Picard v.

Connor, 404 U.S. 270, 277 (1971), cited in Duncan v.

Henry, 115 S. Ct. 887 (1995). Accord Tamapua, 796 F.2d

at 262. A federal claim will be found exhausted so long as

"the “ultimate question for disposition’ will be the same

despite variations in the legal theory or factual allegations

urged in its support." Miller v. Rowland, 999 F.2d 389,

391 (9th Cir. 1993), cert. denied, 114 S. Ct. 1378 (1994),

quoting Picard, 404 U.S. at 277. The mere addition of a

citation to the Eighth Amendment does not render a

claim unexhausted. McQueary v. Blodgett, 924 F.2d 829,

833 (9th Cir. 1991) (due process and equal protection

sufficiently presented Eighth Amendment claim premised

on same arguments). The Attorney General fails to

explain how the current federal claims are in any way

distinct from those presented to the state court. The

twelfth claim for relief is exhausted.

3. Fifteenth Claim

As the Attorney General concedes, McLain

specifically cited Skipper v. South Carolina, 476 U.S. 1

(1986), in his appellate briefs. Skipper plainly invoked

both the Eighth Amendment and Fifth Amendment due

process clause” as dual bases for its judgment. Skipper,

476 U.S. at 4-5, 5 n.1. Furthermore, Skipper’s Eighth

Amendment analysis specifically looked to the prosecutor’s

closing argument regarding potential future harm as a

basis for concluding that the error was not harmless. Id.,

476 US. at 8. Although the constitutional foundations for

the Eighth Amendment error may be conceptually distinct

from the Fifth Amendment’s, Skipper’s analysis of the

harm caused by the Eighth Amendment violation was

closely connected to concerns of procedural due process.

The raising of one ground brings the other to the

forefront almost automatically.

If this were not enough, McLain’s supplemental brief

explicitly referred to "due process" in arguing his Skipper

1. McLain fails to explain how the Sixth Amendment dimension of this

claim differs from the Fifth Amendment aspect. Thus, they are treated together

as the "due process" component discussed in Skipper and Gardner.

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claim. He specifically argued that the exclusion of Dr.

Clair’s testimony not only violated the Eighth Amendment,

but also "the principles of due process." (Appint’s Suppl.

Brf., Doc. B-13, at 3.) He further complained that the

exclusion "unfairly" curtailed the defense’s ability to rebut

the prosecutor’s evidence and argument "suggest[ing] that

appellant would be a negative influence in prison."

(Appint’s Suppl. Brf., Doc. B-13, at 4.) Indeed, as support

for the last quoted phrase, McLain cited Justice Powell’s

concurring opinion in Skipper, whose legal foundation

rested exclusively on due process grounds.

Thus, all aspects of the fifteenth claim for relief were

exhausted.

4. Seventeenth Claim

On direct appeal, McLain initially raised only one

argument pertaining to the penalty phase -- that the trial

court committed prejudicial error in instructing the jury

that a non-parolable life sentence might some day be

commuted to a life sentence that included the possibility

of parole. (AOB, Doc. B-1, pp. 98-103.) He argued that

the instruction was unfairly prejudicial because it

emphasized the possibility of release and tended to unduly

Suggest that commutation and parole were not simply

possible, but probable. He also argued that the modified

instruction was misleading in that it implied that a death

sentence might not be commutable to a parolable life

sentence and, therefore, the only way to assure McLain’s

permanent removal from society was to reach a death

verdict. (AOB, Doc. B-1, pp. 98-103; Reply Brf, Doc. B-3,

pp.26-27.)

McLain argued this claim again in his reply brief, in

supplemental briefs, and on rehearing. (Docs. B-3, B-12,

B-17.) The consistent thrust of these arguments was that

the instruction unfairly suggested that a non-parolable life

sentence would be commuted and that McLain would be

eligible for parole and eventually released unless

sentenced to death. These are the same arguments raised

in McLain’s Seventeenth Claim.

McLain’s arguments in state court fairly presented the

claim raised in his Third Amended Petition. The claim is

exhausted. See Miller, 999 F.2d at 391, Tamapua, 796

F.2d at 262, McQueary, 924 F.2d at 833.

Il. TEAGUE RETROACTIVITY

Respondent contends that several of McLain’s claims

are barred by the Supreme Court’s habeas retroactivity

doctrine announced in Teague v. Lane, 489 U.S. 288

(1989) (plurality). Since the State argues that McLain

"seeks the benefit of a new rule of constitutional law, the

court must apply Teague before considering the merits of

the claim." Caspari v. Bohlen, 114 S. Ct. 948, 953 (1994)

(emphasis criginal).

In Teague, a four-justice plurality of the Supreme

Court proclaimed that they would no longer announce or

enforce "new rules of constitutional criminal procedure"

during habeas corpus review. Teague, 489 U.S. at 310. In

Penry v. Lynaugh, 492 U.S. 302 (1989), a fifth member

joined their ranks and established Teague’s retroactivity

doctrine as a rule of law.

A. Respondent Has Failed to Discharge its Burden

under Teague

In tracing the contours of the new habeas retroactivity

doctrine, the Supreme Court has identified several clear

points in the analytical framework. Caspari, 114 S. Ct. at

953. First, the court must determine the date on which

petitioner’s conviction and sentence became final. Second,

the court must ascertain the state of the law on that date

in order to determine whether the rule sought to be

applied “breaks new ground or imposes a new obligation

on the States." Teague, 489 U.S. at 301. Third, if the

petitioner is attempting to invoke a "new rule," the court

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must then determine whether the rule comes within either

of the two exceptions to Teague. It was no hyperbole for

Judge Legge to conclude: "It is clear from a review of the

cases that have addressed retroactivity that the Teague

analysis is ge ae Odle v. Calderon, 884 F. Supp. 1404,

1411 (N.D. Cal. 1995) (Legge, J.), citing Graham _v

Collins, 113 S. Ct. 882 (1993), Stringer v. Black, 503 U. S.

222 (1992), Penry, 492 U.S. 302.

"The Teague bar to the retroactive application of new

rules is not, however, jurisdictional." Schiro v. Farley, 114

S. Ct. 783, 788 (1994). It is an affirmative defense. Id. Like

any other affirmative defense, Respondent has the burden

to demonstrate that the defense applies. Id.

Respondent has determined when McLain’s

conviction and sentence became final. Beyond that,

however, his invocation of the Teague bar is nothing short

of perfunctory. The Attorney General has not outlined the

state of the law relevant to any of the claims as the law

existed at the relevant time. Nor has Respondent analyzed

the claims he seeks to bar in light of the applicable law at

that time. Nor has Respondent discussed whether

McLain’s claims fall within either of Teague’s exceptions.

Because the Attorney General has not satisfied the burden

imposed on him by Caspari, the State has not met its

burden of demonstrating that Teague bars any of

McLain’s claims. The Court rejects Respondent’s

retroactivity arguments on this separate and independent

basis.

B. The Non-Retroactivity Arguments Lack Merit

As noted by Justice O’Connor, "'[S]tate courts are

understandably frustrated when they faithfully apply

existing constitutional law only to have a federal court

discover, during a [habeas] proceeding, new constitutional

commands.” Teague, 489 U.S. at 310 (plurality) (brackets

in original), quoting Engle v. Isaac, 456 U.S. 107, 128 n.33

(1982). Thus, the Teague retroactivity analysis is intended

to "validate[] reasonable, good-faith interpretations of

existing precedents made by state courts," and thus [to]

effectuate[] the States’ interest in the finality of criminal

convictions and [to] foster [] comity between federal and

state courts." Gilmore v. Taylor, 113 S. Ct. 2112, 2116

(1993), quoting Butler v. McKellar, 494 U.S. 407, 414

(1990).

1. Third and Fourth Claims

Claims 3 and 4 arise out of the State’s use of

jailhouse informants as witnesses at McLain’s trial.

McLain contends that the informants fabricated testimony

and that the State knowingly or recklessly used this

perjured testimony in violation of his right to due process.

He also complains that the prosecutor violated his due

process rights by failing to inform the defense both that

the informants had been acting as de facto law

enforcement agents and that they fabricated testimony.

The State fallaciously argues that it cannot be

criticized for using perjured testimony by jailhouse

informants because this would amount to a "new rule"

under Teague. It has long been the law that the

"deliberate deception of court and jury by the presentation

of testimony known to be perjured” is “inconsistent with

the rudimentary demands of justice." Mooney v. Holohan,

294 U.S. 103, 112 (1935). Accord, Napue v. Illinois, 360

U.S. 264 (1959), Giglio v. United States, 405 U.S. 150

(1972). More recently, the Supreme Court explained that

a "conviction obtained by the knowing use of perjured

testimony is fundamentally unfair." United States v.

Bagley, 473 U.S. 667, 678 (1985). Setting the standard of

proof, the Supreme Court held that such a conviction

"must be set aside if there is any reasonable likelihood

that the false testimony could have affected the judgment

of the jury." Bagley, 473 U.S. at 678. Accord United

States v. Agurs, 427 U.S. 97, 103, 110 (1976), Brown v.

Borg, 951 F.2d 1011, 1015 (9th Cir. 1991).

The State’s Teague objection to McLain’s challenges

to the allegedly perjurious nature of the informants’

testimony is patently without merit. McLain seeks to apply

old rules of constitutional law to these new facts. Nothing

in Teague or its progeny suggests that this is

inappropriate. Teague only prohibits the invocation of new

rules; it has no application where, as here, the petitioner

seeks to apply “a rule of ... general application" to a new

set of facts. Wright v. West, 112 S. Ct. 2482, 2499 (1992)

(Kennedy, J., concurring). Accord Stringer, 503 U.S. at

227-32. Teague poses no bar to these claims.

McLain’s fifth claim for relief is also related to the

jailhouse informant testimony. In this claim, however,

t McLain asserts that his conviction is invalid because it is

: founded upon materially unreliable testimony. Once again,

the Attorney General misconstrues Teague.

McLain does not broadly assert that, as a matter of

constitutional law, prosecutors should be universally

precluded from relying on jailhouse informant testimony

in securing convictions or death verdicts. Rather, McLain’s

fifth claim is premised upon the longstanding principle of

due process that convictions must be based on reliable

and credible evidence, e.g., Johnson v. Mississippi, 486

U.S. 578, 590 (1988), and that -- irrespective of what facts

McLain was able to establish by a preponderance of the

evidence at the federal evidentiary hearing -- these

informants were important witnesses and the reliability of

their tria] testimony is inherently suspect. It has long been

recognized that the testimony of informants, especially

jailhouse informants, should be treated with suspicion.

United States v. Bernal-Obeso, 989 F.2d 331, 333-35 (9th

Cir. 1993). The claim that these informants provided

testimony that is not sufficiently reliable for a death

verdict would not amount to a "new constitutional rule of

2. Fifth Claim

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criminal procedure," but simply, at most, a new factual

setting for an old rule.

Moreover, given its intensive focus on the

trustworthiness of the outcome, there is every reason to

believe that the rule invoked in this claim falls within

Teague’s exception for "new procedures without which

the likelihood of an accurate conviction is seriously

diminished’ or which implicate ’the fundamental fairness

of the criminal proceeding."” Harmon v. Marshall, 57 F.3d

763, 765 (9th Cir. 1995), quoting Teague, 489 USS. at 311,

313.

3. Sixteenth Claim

Similarly Teague does not bar claims that the trial

court erroneously excluded evidence. True, the Supreme

Court has not firmly stated that a capital defendant must

be allowed to establish that more culpable accomplices

will be granted sentences more lenient than death. This

does not, however, ineluctably invoke the prohibition

against announcing "new rules of constitutional criminal

procedure" on habeas. Teague v. Lane, 489 U.S. 208

(1989). The "rule" invoked is clear and well-established --

a capital defendant must be allowed to present any

relevant evidence that is "mitigating in the sense that [it]

might serve as a basis for a sentence less than death."”

Mak v. Blodgett, 970 F.2d 614, 623 (9th Cir. 1992)

(quoting Skipper, 476 U.S. at 4-5), cert. denied, 113 S. Ct.

1363 (1993). The rule is not new -- it derives from Lockett

v. Ohio, 438 U.S. 586 (1978) (plurality), which was decided

not only before the end of McLain’s direct appeal, but

before his trial as well.

The Supreme Court has limited the reflexive

invocation of Teague when the only argument against

retroactivity is the claimed "new application" of an "old"

rule. The "inquiry is to determine whether a particular

decision has really announced a ’new’ rule at all or

whether it has simply applied a well- established

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constitutional principle to govern a case which is closely

analogous to those which have been previously considered

in the prior case law." Wright v. West, 112 S. Ct. at 2497

(O’Connor, J., concurring) (emphasis in original).

[T]he standard for determining when a case

establishes a new rule is "objective," and the mere

existence of conflicting precedents does not

necessarily mean a rule is new. If the proffered

factual distinction between the case under

consideration and pre-existing precedent does not

change the force with which the precedent’s

underlying principle applies, the distinction is not

meaningful, and any deviation from precedent is not

reasonable.

Wright, 112 S. Ct. at 2497 (O’Connor, J., concurring,

joined by Blackmun and Stevens, JJ.). Accord Stringer,

503 U.S. at 236-37.

Justice Kennedy provided a similar explanation:

Whether the prisoner seeks the application of an old

rule in a novel setting depends in large part on the

nature of the rule. If the rule in question is one which

of necessity requires a case-by-case examination of

the evidence, then we can tolerate a number of

specific applications without saying that those

applications themselves create a new rule. The rule

of Jackson v. Virginia, 443 U.S. 307 (1979), is an

example. By its very terms it provides a general

standard which calls for some examination of the

facts. The standard is whether any rational trier of

fact could have found guilt beyond a reasonable

doubt after a review of all the evidence, so of course

there will be variations from case to case. Where the

beginning point is a rule of this general application,

a rule designed for a specific purpose of evaluating a

myriad of factual contexts, it will be the infrequent

case that yields a result so novel that it forges a new

rule, one not dictated by precedent.

Id., 112 S. Ct. at 2499 (Kennedy, J., concurring).

The rule of Lockett can _hardly be called

"fact-specific." It is a rule of general application requiring

States to «'low sentencers to consider all relevant

mitigating evidence that would provide a basis for a

verdict less than death. (Lockett does not, on the other

hand, entitle capital defendants to perform an abolitionist

crusade -- i.e., to argue about the general propriety of

capital punishment in a manner that is not directly tied to

the facts of the case before the jury. See Harris v. Pulley,

692 F.2d 1189, 1203-04 (9th Cir. 1982) (Harris 1), rev’d on

other grounds, 456 U.S. 37 (1984).) Its application "of

necessity requires a case-by-case examination of the

evidence" and is "designed for the specific purpose of

evaluating a myriad of factual contexts." Wright, 112 S. Ct.

at 2499 (Kennedy, J., concurring). Indeed, it is

noteworthy that the Supreme Court found its Skipper

decision -- one of Lockett’s progeny -- to be fully

retroactive, citing a case indicating that it had "merely ...

applied settled precedents to [a] new and different factual

situation{].". Truesdale v. Aiken, 480 U.S. 527 (1987),

citing United States v. Johnson, 457 U.S. 537, 549 (1982).

4. Seventeenth Claim

In a brief filed eight months after the Ninth Circuit

decision was rendered -- and seven months after McLain

filed his first brief calling the case to the Court’s attention

-- the Attorney General asserted that the Ninth Circuit’s

decision in Hamilton v. Vasquez, 17 F.3d 1149 (9th Cir.),

cert. denied, 114 S. Ct. 2706 (1994), created a new rule of

law that is barred by Teague.

McLain’s seventeenth claim asserts that the modified

Briggs Instruction both unduly emphasized the possibility

of commutation and release while simultaneously

providing the jury with materially inaccurate information

suggesting that commutation and release were in fact

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likely. McLain argues that the instruction violated his due

process rights to a fair and reliable penalty verdict.

The Attorney General is correct that, prior to

Hamilton, no court had expressly condemned the precise

misinformation that was contained in the instruction given

during McLain’s trial. Yet, well before McLain’s appeal

was final, the Supreme Court had confirmed that jurors

cannot be misled as to the significance of their verdict.

Caldwell v. Mississippi, 472 U.S. 320 (1985) (plurality). Cf.

California v. Ramos, 463 U.S. 992, 1009 (1983). Indeed,

throughout Ramos, the Supreme Court repeatedly

emphasized that the unmodified Briggs Instruction

“corrects a misimpression" that a non-parolable life

sentence could not be commuted "and supplies the jury

with accurate information." Id., 463 U.S. at 1009. See also

id. at 1004, 1012. The accuracy of the information

provided to the jury was again considered the crucial

question when the Supreme Court reversed another death

sentence based on a misdescription of the jury’s

sentencing role. Caldwell, 472 U.S. at 336 (plurality), id.,

at 341-42 (O’Connor, J., concurring). Most recently, the

Supreme Court again reinforced that simply biasing the

jury in favor of death is not the crucial question -- after

all, that is the function of all aggravating evidence and

argument -- the concern is over the information’s

accuracy. Romano v. Oklahoma, 114 S. Ct. 2004 (1994).

The Ninth Circuit’s decision in Hamilton relies

squarely on the guidelines established in Ramos. Ramos

was decided well before McLain’s appeal became final.

Thus, the "rule" of Hamilton is nothing more than the

"rule" of Ramos -- that the jury may be provided with

information regarding commutation so long as the

information is not false or misleading -- applied to a

modified version of the Briggs Instruction. The arguments

are nothing more than attempts to apply "a rule of ...

general application” to a new set of facts. See Wright, 112

S. Ct. at 2499 (Kennedy, J., concurring), Stringer, 503 U.S.

at 227-32. The arguments premised on Hamilton are not

barred by Teague.

PART II -- DISCUSSION

. First Claim: I loind

McLain’s first claim for relief asserts that the trial

court improperly permitted the State to join the charges

relating to Jodi Whitman with the charges for which the

State sought the death penalty, those relating to the

murder of Joni Kelley. McLain asserts that, as a result, his

conviction and death sentence were unlawfully imposed in

violation of the Fifth, Sixth, Eighth, and Fourteenth

Amendments.

A. Prejudi Kelley C

McLain asserts that the joinder of the Whitman and

Kelley charges allowed the introduction of inflammatory

evidence related to the Whitman charges that unfairly

prejudiced his trial on the Kelley charges.

Petitioner argues that joinder led the jury to find that

McLain was predisposed to commit the Kelley offense,

permitted the jury to improperly cumulate evidence in

deliberating on the Kelley charges, and allowed the State

to urge the jury to first make findings on the Whitman

charges and then to apply those findings as evidence of

guilt on the Kelley charges.

McLain specifically attacks two categories of evidence

that were admitted because of the joinder that he asserts

would have been inadmissible during the guilt phase if the

charges had been severed. The first category is the

evidence of McLain’s 1971 rape convictions. The second

category is the evidence of his involvement in the

then-pending Whitman charges: the attempted burglary of

the Whitman residence and the attempted rape and

murder of Jodi Whitman.

— .

The first category of evidence included:

(1) McLain’s 1971 conviction for the rape of Jodi

Whitman;

(2) information revealing that Whitman was eleven

years old at the time of the 1971 offense; and

(3) a stipulation that McLain had also been convicted

in 1971 for the rape of Lisa Donaldson and that

Donaldson was a minor at the time.

McLain asserts that this evidence was irrelevant to

the determination of guilt for the Kelley charges and that

the trial court’s limiting instruction was ineffective and

insufficient.

The second category of evidence is the evidence

relating to the Whitman charges. McLain alleges that the

prosecutor improperly encouraged the jury to use

evidence relating to the Whitman charges in deciding the

Kelley charges. McLain asserts that there was no factual

relationship between the Whitman crimes and the Kelley

crimes that would justify using the evidence of one in

support of the other. He argues that the temporal or

geographical similarities do not give rise to inferences of

motive, plan, intent, or other common element.

In assessing whether the joinder of offenses is

constitutionally impermissible, the Ninth Circuit has

explained:

[t]he propriety of a consolidation rests within the

sound discretion of the state trial judge. The

simultaneous trial of more than one offense must

actually render petitioner’s state trial fundamentally

unfair and hence, violative of due process before

relief pursuant to 28 U.S.C. § 2254 would be

appropriate.

Featherstone v. Estelle, 948 F.2d 1497, 1503 (9th Cir.

1991) (quoting Tribbitt v. Wainwright, 540 F.2d 840, 841

(Sth Cir. 1976), cert. denied, 97 S. Ct. 1184 (1977)).

The Supreme Court has “defined the category of

infractions that violate “fundamental fairness” very

narrowly.” Estelle v. McGuire, 502 U.S. 62, 73 (1991)

(quoting Dowling v. United States, 493 U.S. 342, 352

(1990)). The State correctly observes that, in the context

of consolidated charges, the Supreme Court has

recognized that (1) the jury is expected to follow

instructions in limiting evidence to its proper function, and

(2) the convenience of trying different crimes against the

same person in one trial is a valid governmental interest.

Spencer v. Texas, 87 S. Ct. 648, 653 (1966).

In the present case, McLain was not prejudiced by

the admission of the evidence of the 1971 convictions. It

did not render his trial fundamentally unfair. The trial

court adequately instructed that the jury on the limitations

on the use of this evidence and this Court must assume

the jury followed the instructions as given.

The trial court expressly instructed the jury that the

evidence of McLain’s 1971 conviction for the rape of

Whitman could be used only for the then-pending

Whitman charges but not for the Kelley charges. The trial

court also instructed the jury not to consider the prior

rape convictions in evaluating McLain’s credibility. The

trial court further instructed the jury that it could not

consider evidence of McLain’s other crimes to prove that

he was a person of bad character or had a disposition to

commit crimes.

The trial court informed the jury that the evidence of

other crimes “was received only as to the offenses

pertaining to Jodi Whitman and may be considered by you

only as to those offenses." (C.T. 1861.) The court also

informed the jury that it could use the other crimes

evidence only to determine (1) whether there was a logical

connection between the 1971 offense and the Whitman

offense, (2) whether there was corroboration of the

prosecuting witness, (3) whether the requisite intent

existed, (4) the identity of the person who committed the

crimes, (5) the motive for the commission of the crime

charged, (6) whether McLain had the knowledge and

means that might have been useful in committing the

crime charged, and (7) the existence of a conspiracy. The

trial court then reiterated that the evidence relating to the

1971 offense was admitted for those limited purposes and

only as to the offenses relating to Jodi Whitman. The

court directed the jury not to use the conviction for any

other purpose.

These instructions were reinforced by the prosecutor’s

closing argument. He expressly told the jury not to

consider the evidence of the 1971 convictions as evidence

of McLain’s propensity to engage in criminal behavior

or to commit sexual crimes specifically. (R.T.

3838.) He also told the jury not to consider it as evidence

that McLain was a “lousy” person.

Thus, McLain was sufficiently protected from an

improper use of the evidence of the 1971 convictions.

Likewise, the evidence relating to the Whitman

charges did not render McLain’s trial on the Kelley

charges fundamentally unfair.

The prosecutor connected the Whitman and Kelley

charges by arguing that if the jury found that McLain had

attempted to rape or murder Whitman then it should

consider what relationship McLain’s commission of the

Whitman offenses might have to the Kelley charges. He

specifically argued that it might be logical to conclude that

if McLain had been frustrated in his attempts to get

revenge on Whitman, he may have taken out that

frustration on Kelley. (R.T. 7840.)

Arguably, joinder of the claims should not have been

allowed because the Whitman charges were not

sufficiently related to the Kelley charges. But the question

is not whether the joinder was generally proper, but

whether it rendered petitioner’s trial fundamentally unfair.

Evidence of prior bad acts is relevant to show a

motive. Although the argument that the events at

Whitman’s apartment provided the motive for the murder

of Kelley may be logically weak, the jury was capable of

determining whether to accept it. The prosecutor himself

backed away from the argument that the Kelley offense

followed from frustration over the failure to find Joni

Whitman. The prosecutor admitted in his closing

argument that it was not clear exactly when the Kelley

offenses took place and that it was possible that they

occurred prior to going to Joni Whitman’s apartment.

(R.T. 7848.)

After a review of the record, the Court concludes that

the joinder of the Whitman charges with the Kelley

charges, while potentially inflammatory, did not render the

trial on the Kelley charges fundamentally unfair.

B. Prejudi Whi Cl

Petitioner further argues that joinder tainted the

penalty phase. He asserts that without joinder it is unlikely

he would have been found guilty of the attempted

break-in at Whitman’s apartment. He argues that the

prosecutor therefore would not have been able to argue

in the penalty phase, as an aggravating circumstance, that

he returned to Ventura to seek revenge against Whitman,

a former victim.

McLain has presented no cogent theory as to how the

joinder of the Kelley charges with the Whitman charges

could have led the jury improperly to convict him on the

Whitman charges. There was no evidence during the guilt

phase that was relevant only to Kelley charges and which

the jury could not have permissibly used for the Whitman

charges. Therefore, this argument does not support a

finding of fundamental unfairness.

The Court therefore denies Petitioner’s first claim for

relief.

Il. Second Claim: Jailhouse Informants -- Knowing Use

f Perjured Testi

After his arrest, McLain was incarcerated in the

Vallejo branch of the Solano County Jail. McLain was

placed in a long-term holding cell along with many other

lt i

FO Bsc Mik res

ee ea ae Oe ad

‘

inmates, including Edward DeFilipis, Zolando Hockett,

and Doyle Smith.

Testifying at McLain’s trial under a grant of immunity

from both Ventura and Solano counties, Ketcherside

attempted to emphasize McLain’s involvement in the

crimes while minimizing his own role. Circumstantial

evidence strongly, although not incontrovertibly, suggested

McLain’s participation. The prosecution sealed its case

through three jailhouse informants who testified that

McLain admitted to them that he had committed the

charged crimes and told them details of how the crimes

were committed.

DeFilipis and Hockett testified at the Ventura trial

that McLain made several incriminating statements to

them while they were housed together. DeFilipis and

Hockett had previously given similar testimony at

McLain’s Solano County trial. The prosecution read into

the record similar testimony that Doyle Smith gave at

McLain’s preliminary hearing.

The Court finds that McLain has failed to prove by

a preponderance of the evidence that any of the testimony

by the jailhouse informants was perjurious. The Court also

finds that there was no deliberate wrongdoing by any

member of the prosecution team. The Court further finds

that, while not exhaustive, the prosecutor’s investigation

was sufficient under the standards prevailing in the early

1980's.

Ill. There is Insufficient Proo erjurious Testimony by

the Jailhouse Informants

1. DeFilipis

As demonstrated both by his history of varied stories

as well as the Court’s observation of DeFilipis on the

witness stand at the evidentiary hearing, DeFilipis has an

obvious ability -- and willingness -- to mold his story to suit

his audience. Although DeFilipis’ willingness to defile the

oath when it pleases him is disturbing, McLain still bears

the ultimate burden to prove, by a preponderance of the

evidence, that DeFilipis’ testimony at the Ventura trial

was in fact false. There is nothing to corroborate

DeFilipis’ transitory version that McLain never varied

from denying guilt. On the other hand, Respondent has

submitted credible evidence suggesting that, if McLain did

speak with DeFilipis (which is not contested), he likely

per his personal involvement in the Ventura

ihe Court does not credit DeFilipis’ allegation that

Solano County Detective Hind provided him with a

document that purported to be McLain’s handyritten,

unsigned confession. While Detective Hind did provide

DeFilipis with a document during the initial interview, the

Court finds that the document provided was DeFilipis’

own handwritten notes. The Court finds this version of

events all the more plausible in light of the fact that

DeFilipis admits that he took peisunal notes, admits that

he gave them to Hind, and that DeFilipis reviewed those

notes before giving the tape-recorded statement to Hind.

Also significant is the fact that -- other than the impostor

Antonio Cortez Buckley -- DeFilipis is the only informant

who has ever claimed that he was directly provided with

written information about the case. Hockeit has

steadfastly denied that Hind presented him with any

written documents purporting to include statements by

McLain. The Court finds that the most plausible version

of events is that contained in the verbatim transcript

prepared by Hind of his tape-recorded interview with

DeFilipis on February 5, 1980. (Exh. 318.)

In other words, the Court finds that DeFilipis had

handwritten notes which had been placed wih his

personal property. When the interview started, DeFilipis

mentioned that his conversations with McLain had

occurred three days earlier and that he would have a

better recollection of the meeting if he had his notes with

him. Hind obtained DeFilipis’ notes and gave themto him

to review. After reviewing his own notes, Hind and

DeFilipis continued the interview. The evidence strongly

suggests that, when questioned by McLain’s attorneys and

investigators, in an effort to provide them with information

they wanted so that they would leave him alone, DeFilipis

embellished upon this story by stating that the notes Hind

gave him were actually represented as being an unsigned

handwritten confession by McLain.

2. Hockett

With respect to Hockett, McLain does not accuse law

enforcement of directly providing information to the

informant. Rather, McLain alleges a more subtle form of

fabrication -- he asserts that during the interviews, Hind

“just led [Hockett] in the direction he wanted [him] to go."

(Exh. 722, 13:28-14:1, 13:2- 6.) Hockett reaffirmed these

assertions at the evidentiary hearing. Hockett confirmed

that Hind questioned him in this way specifically with

regard to the Ventura crimes as well as with the Solano

crimes.

The Court does not find Hockett’s allegations to be

credible. Hockett testified at the Ventura trial that, during

his interview with Hind, Hockett only mentioned the

Ventura crime in passing and did not provide Hind with

any of the details that McLain had mentioned about the

Ventura crimes. (R.T. 6548.) Consistent with Hockett’s

trial testimony, Hind’s report of his interview with Hockett

mentions the Ventura crimes only in passing. (Exh. 323.)

The Court finds that, consistent with Detective Hind’s

practice of documenting his conversations, if they had

discussed the Ventura crimes in any significant detail or if

Hockett had made any significant statements regarding the

Ventura crimes, Detective Hind would have include those

statements in his report. The absence of details about the

Ventura crime strongly suggests that Hind and Hockett

did not discuss the details of the Ventura crime. The

Court therefore finds that Hind in fact did not ask

Hockett leading questions about the Ventura crime or

indirectly provide Hockett with the facts or circumstances

surrounding the Ventura crime.

In sum, the Court finds that Hockett did not obtain

his information about the Ventura crimes from Detective

Hind. McLain has failed to discharge his burden to show

that Hockett falsely testified that McLain admitted

committing the Ventura crimes.

3. Conclusion

Implicit in a grant of habeas relief for a prosecutor’s

knowing use of perjured testimony is the requirement that

there be proof of the perjury itself. The claims that

Detective Hind provided DeFilipis and Hockett with

information about the Ventura crimes -- either by handing

them written documents or asking leading questions -- are

not credible. McLain has failed to establish that DeFilipis

and Hockett committed perjury when they testified at the

Ventura trial that McLain admitted to them that he had

participated in the crimes.

A. Assuming, Arguendo, that DeFilipis and Hockett

Gave Perjurious Testimony at the Ventura Trial,

It i t Reason robable that the ult o

the Trial Would Have Been Different

1. The Standard for Assessing Prejudice

A threshold question regarding the use of allegedly

perjured testimony is the degree of culpability borne by

the prosecution. "[I]f the prosecution knowingly uses

perjured testimony, or if the prosecution knowingly fails to

disclose that testimony ... was false, the conviction must be

set aside if there is any reasonable likelihood that the false

testimony could have affected the verdict." United States

vy. Endicott, 869 F.2d 452, 455 (9th Cir. 1989). Accord

Brown _v. Borg, 951 F.2d 1011, 1015 (9th Cir. 1991),

Bagley, 473 U.S. at 678-80. On the other hand, where the

false evidence is unknown to the prosecution, the

conviction may be set aside "only if there is a reasonable

probability that, had the evidence been disclosed to the

defense, the result of the proceeding would have been

different." Endicott, 869 F.2d at 455.

For the reasons discussed in the following sections,

the Court finds that there was no deliberate wrongdoing

on the part of any member of the prosecution team. The

Court also finds that, although not exhaustive, the

prosecutor’s investigation was sufficient under the

standards prevailing in the early 1980’s. Therefore, the

more stringent standard for testing prejudice applies.

McLain has not discharged his burden to show prejudice

under this more stringent standard.

2. McLain Has Not Shown that_ the

Prosecution Deliberately Solicited

Perjurious Testimony

As explained above, the Court rejects McLain’s

factual contentions that Detective Hind _ either

inappropriately led Hockett during his questioning or

provided DeFilipis with written material other than

DeFilipis’ own notes.

Moreover, it is undisputed that the prosecutor, Peter

Kossoris, never requested that anyone tell anything other

than the truth. In fact, DeFilipis and Hockett both confirm

that Kossoris requested that they tell the truth and only

the truth. Further, throughout the various versions of their

respective stories, both Hockett and DeFilipis have

acknowledged that they never suggested to Kossoris that

the story they were telling was anything other than

truthful.

There is no persuasive evidence that any member of

the prosecution deliberately solicited perjurious testimony.

3. cLai ot t t

Prosecution W i ing the

Veracity of the Informants’ Testimony

The problems that can arise from the use of

informant testimony have long been known to the law.

Indeed, the Ninth Circuit recently found that the pitfalls

inherent in informant testimony are so obvious that they

can be judicially noticed. Bernal-Obeso, 989 F.2d at 333.

As described by the Ninth Circuit:

By definition, criminal informants are cut from

untrustworthy cloth and must be managed and

carefully watched by the government and the courts

to prevent them from falsely accusing the innocent,

from manufacturing evidence against those under

suspicion of crime, and from lying under oath in the

courtroom.... [P] Criminals caught in our system

understand they can mitigate their own problems with

the law by becoming a witness against someone else.

Some of these informants will stop at nothing to

maneuver themselves into a position where they have

something to sell.

Bernal-Obeso, 989 F.2d at 333, 334.

At the same time, the Circuit recognized that "our

criminal justice system could not adequately function

without information provided by informants and without

their sworn testimony in certain cases." Bernal-Obeso, 989

F.2d at 334. Although explaining the importance of

confidential informants to the investigation and

prosecution of many types of crimes, id., at 335, the use of

jailhouse informants can be equally helpful in prosecuting

certain criminals.

The Ninth Circuit panel observed that the judicial

system’s response has been to rely on four main avenues

for protecting the integrity of the judicial process:

[The courts] have decided on balance, not to prohibit

... the practice of rewarding self-confessed criminals

for their cooperation, or to outlaw the testimony in

court for their testimony. Instead, we have chosen to

rely on (1) the integrity of government agents and

prosecutors not to introduce untrustworthy evidence

into the system, (2) trial judges and stringent

discovery rules to subject the process to close

scrutiny, (3) defense counsel to test such evidence

with vigorous cross examination, and (4) the wisdom

of a properly instructed jury whose duty it is to assess

each witness’s credibility and not to convict unless

persuaded beyond a reasonable doubt of the

accused’s guilt. To quote the Supreme Court, "The

established safeguards of the Anglo- American legal

system leave the veracity of a witness to be tested by

cross- examination, and the credibility of his

testimony to be determined by a properly instructed

jury."

Bernal-Obeso, 989 F.2d at 335 (citations omitted).

Built upon these premises, the circuit affirmed that

“prosecutors and investigators [should] take all reasonable

measures to safeguard the system against such treachery."

Id., 989 F.2d at 334. Upon a review of all the evidence

and testimony, the Court finds that, although not

exhaustive, Kossoris’ investigation was reasonable under

the standards of practice during the early 1980’s and by no

means reckless.

Unlike the contentions regarding what McLain

actually said to the informants, the scope of Kossoris’

investigation is not significantly contested. In sum, Kossoris

personally interviewed each of the informants before they

testified, received and reviewed reports regarding their

statements, “evaluated the nature" of the testimony, and

met with one or two jurors from the Solano trial who gave

their impressions regarding the impact of the informants’

testimony. At each of his meetings with Hockett and

DeFilipis, Kossoris states that he also evaluated their

physical presence and demeanor and attempted to arrive

at his own conclusion as to their credibility.

te Nt an, eaten

Although McLain points out that Kossoris could have

done more, McLain has not demonstrated that Kossoris

was reckless in stopping his investigation where he did.

Kossoris was not obligated to interview the informants

significantly prior to trial. Even though Kossoris did not

interview DeFilipis until the first day of DeFilipis’

testimony and Hockett until the day before Hockett first

testified, Kossoris had not previously committed himself to

using their testimony. The timing of the interviews

suggests no more than that Kossoris made a prediction

that he was likely to use their testimony. An earlier trip to

Solano County for the sole purpose of interviewing the

informants was unnecessary since they did not provide the

foundation for the case, they only helped to seal it.

Moreover, prior to these interviews, Kossoris

consulted other sources regarding the reliability of the

informants. Even though he did not speak with Detective

Hind, Kossoris did speak with Solano County Deputy

District Attorney Robin Keeney, who was sufficiently

familiar with DeFilipis to consider him "a courthouse

fixture" and, because of his position, likely to be generally

familiar with the Solano County criminal community.

Keeney, of course, had also participated in interviewing

DeFilipis. Additionally, Kossoris also received and

reviewed the Solano trial transcripts, Detective Hind’s

report summarizing the DeFilipis and Hockett interviews,

and the verbatim transcript of the DeFilipis interview.

Kossoris also met with at least one of the jurors from

the Solano trial. The Court does not find this to be a

critical part of the investigation since the jurors could only

state whether they believed the .aformants were being

truthful, not whether the informants actually were truthful.

The problem with informants is not simply that they might

lie instead of tell the truth. Rather, the problem is that

they are often in a position where they can credibly and

convincingly tell a tale that is nothing but a fabrication.

Meeting with a juror or other person involved with the

previous trial could only help determine whether the

jailhouse informants could weave a credible tale, not

whether the tale they told was in fact true. It is the latter

point that is crucial here. Nonetheless, the effort is not to

be totally discounted.

The Court does not credit Kossoris’ evaluation of the

likely truth based on his assessment that “all people in jail

talk." Such a sweeping generalization is far from the

stringent assessment of veracity that is constitutionally

required. To conclude that all people talk is to dismiss the

possibility that, even though an inmate might talk, some

jailhouse informants may nonetheless manufacture claims

that the inmate spoke with that particular informant. To

rely on this type of conclusion is also to collapse Kossoris’

stated two- pronged analysis into one -- since the first will

always be satisfied since "everyone talks." The concern

about informant veracity is not of recent vintage and the

reasonableness of Kossoris’ conclusion that McLain spoke

should be based on specific facts relating to McLain and

the individual informants, not on the sweeping

generalization that everyone talks.

Beyond the generalizations, however, Kossoris did

make a credibility assessment that was specific to McLain

and the particular informants involved. Kossoris explained

that he had information that McLain had previously

boasted about his role in the 1971 rape of Jodi Whitman

and, additionally, had written an autobiography that was

seized by prison officials. In light of incidents such as

these, Kossoris considered McLain to be a "classic

sociopath,” highly likely to have discussed his criminal

exploits and given details to others with whom he had no

previous connection. In light of these factors specific to

McLain, Kossoris could reasonably conclude that McLair

was likely to have talked with other inmates while

incarcerated.

Kossoris could also have reasonably concluded that

McLain boasted to these particular inmates. Kossoris

explained that he evaluated the likelihood that the

informants stories were concocted in light of the fact that

DF eT NE RAYE AU AWE DE Sey

the stories were corroborated by the physical evidence and

that the informants each had common and different facts.

One of the factors Kossoris relied upon was that DeFilipis,

for example, was able to accurately describe locations

even though he had never been to Ventura.

That the informants’ stories were corroborated by the

physical evidence has turned out to be an insufficient

benchmark standing by itself. The inadequacy of this

standard is proof of the numerous ways in which jailhouse

informants have been able to learn information about a

case -- such as, for example, by reading newspaper

accounts -- even though they had no communication with

the defendant.

The other obvious deficiency is that the purpose of

the investigation is to determine whether the plausibly

accurate story being told by an informant is in fact true. A

jailhouse informant who recounts facts that are wholly

inconsistent with the physical evidence will be readily

uncovered as a fraud and will not be used. The concern,

however, is over the veracity of informants who are able

to relate facts that are corroborated by the physical

evidence.

This factor, however, is not a useless standard so long

as it functions only as a guide. More pertinent to the

instant case is that it was not an unreasonable guidepost

during the early 1980’s. In this case, the informants all

knew that the victim was a woman, that she was shot

three times, that McLain went to Ventura to seek revenge

against a former rape victim who testified against him,

that McLain and his companions had located and

attempted to enter her house, and the common

description of the murder victim as "big" or "heavy" and in

her early 20’s.

Although he did not identify any specifics in his

evidentiary hearing testimony, Kossoris also said that he

was impressed by the fact that the informants also all

knew of different facts -- i.e., they were not simply relating

a commonly manufactured story. A review of the record

confirms that Kossoris’ statement is accurate. Hockett, for

example, knew of the Dodge Charger and that the vehicle

had mechanical problems; DeFilipis knew of the car

troubles and that the threesome then stole a Volkswagen.

Both DeFilipis and Hockett knew that McLain was

accompanied by two accomplices, but they remembered

the names of different ones -- DeFilipis remembered the

name Teddy, that Teddy was McLain’s nephew, and that

there was someone else; Hockett remembered that one of

the boys was named Lloyd. Although these facts were all

accurate and, indeed, distinct, according to both Kossoris

and Hockett, Kossoris had very little information about

the substance of Hockett’s anticipated testimony regarding

the Ventura killing until after Hockett testified at the

Ventura trial.

Since other cellmates did come forward and

specifically refute that McLain spoke with anyone,

Kossoris might have been more thorough by interviewing

other people who shared the cell with McLain to ask them

whether McLain ever spoke about his case or whether he

had confessed to killing anyone. That he did not do so,

however, does not seriously undermine the reasonableness

of his other efforts. The only remaining criticisms of any

significance are more recent developments in prosecutorial

investigative techniques in weeding out untruthful

informants.

During the early 1980s, it was typical to rely on such

factors as that the information was known only to law

enforcement and that the information was corroborated by

the physical evidence. Combined with other factors such

as the likelihood that McLain actually bragged, the

discussions with the Solano district attorney, reviewing

reports and transcripts of prior conversations and

testimony, although not unimpeachable, given the totality

of the circumstances, Kossoris’ investigation was certainly

reasonable and definitely not reckless.

In light of the Court’s conclusions that the material

aspects of DeFilipis’ and Hockett’s testimony were true,

there is little likelihood that any slight variations would

have made any difference in the outcome.

II. Third Claim: Jailhouse _Informants_-- _Massiah

Violation

In his third claim for relief, McLain asserts that the

State interfered with his constitutional right to counsel

when he spoke with cellmates who later relayed McLain’s

statements to the jail authorities. Massiah v. United

States, 377 U.S. 201, 205-06 (1964). "[A] defendant does

not make out a violation of [the right to counsel] simply

by showing that an informant ... reported his incriminating

statements to the police." Kuhlmann v. Wilson, 477 U.S.

436, 459 (1986). Rather, "the Sixth Amendment is violated

when the State obtains incriminating statements by

knowingly circumventing the accused’s right to have

counsel present in a confrontation between the accused

and a state agent." Maine v. Moulton, 474 U.S. 159, 176

(1985) (emphasis added). Thus, in order to establish a

violation of the right to counsel, McLain must establish

that the informants were actually working as police agents.

A. DeFilipis

The Court finds that DeFiipis’ initial contact with

investigating officers occurred in the manner described in

Detective Hind’s tape-recorded interview in February

1980. A verbatim transcript of the interview was received

at the evidentiary hearing as Exhibit 318 without any best

evidence or hearsay objection. Even if the transcript had

been admitted only for its non-hearsay purposes, in light

of DeFilipis’ repeated inconsistencies, the Court has

sufficient doubt regarding the veracity of DeFilipis’ current

version such that the current story cannot be said to have

been established by the requisite preponderance of the

evidence. Sumner v. Mata, 449 U.S. 539, 551 (1981),

McKenzie v. McCormick, 27 F.3d 1415, 1419 (9th Cir.

1994).

Specifically, the Court finds that DeFilipis’

handwritten notes were found by a guard during a routine

entry search and that, when DeFilipis explained what they

were, on DeFilipis’ request the guard placed the note

paper with DeFilipis’ stored property to keep the notes

safe and to protect DeFilipis’ safety should another inmate

find the papers. Partially out of fear of McLain, DeFilipis

then requested to speak with the investigating detective.

The Court further finds that, at DeFilipis’ request, the

guard placed a phone call to Detective Hind at his

residence. Prior to receiving the phone call, Detective

Hind had never heard of Edward DeFilipis. Hind spoke

only briefly with DeFilipis to schedule an appointment for

the following day. Hind met with DeFilipis on February 5,

1980 (several days after DeFilipis’ conversations with

McLain), received information from DeFilipis, and

specifically told DeFilipis not to seek out further

information. DeFilipis was released within three hours of

this conversation. _

DeFilipis’ recent claim that the guard threatened to

transfer DeFilipis to a dangerous portion of the jail where

racial tensions were high, especially considering the source

(DeFilipis), is simply not credible.

Based on these findings, there is no basis for finding

a connection between law enforcement officers and

Edward DeFilipis. Prior to his meeting with Hind,

DeFilipis had no contact with law enforcement as a

potential agent. At the meeting on February 5, 1980,

DeFilipis was specifically told not to investigate further.

Cf. United States v. Henry, 447 U.S. 264 (1980), Moulton,

474 US. 159. The Court does not find these instructions

dispositive, but rather finds that DeFilipis was released in

such a short period of time that he had no opportunity to

conduct any sort of investigation. In short, DeFilipis was

not acting as a police officer. McLain was not deprived of

his right to counsel when speaking with a fellow inmate

who was nothing other than an incarcerated private

citizen.

B. Hockett

McLain has failed to persuasively demonstrate any

connection between law enforcement and Hockett.

Hockett states that he believed his assistance was sought

by law enforcement because Doyle Smith said that he,

Smith, was working in connection with Hind to build a

case against McLain. In essence, Hockett says Smith said

that Hind said that Smith could work with the investigative

team in order to shore up the case against McLain.

The Court concludes that, if each of the nested

statements were true, the law enforcement connection

would be sufficient as a matter of law. The Attorney

General did not object to Hockett’s testimony as hearsay.

Irrespective of the Court’s power to exclude this evidence

sua sponte, the Court does not find this testimony

sufficiently reliable or credible. The multiple levels of

hearsay undermine the reliability of the ultimate allegation

at issue -- whether Hind and Smith worked out an official

arrangement such that Smith was empowered to enlist

Hockett in his investigative efforts. The reliability of

Hockett’s testimony is also belied by the minimal amount

of information that is within his personal knowledge.

McLain has not presented any specific facts establishing

Smith’s alleged law enforcement connection; he has only

offered Hockett’s general conclusionary opinion that Smith

was part of the investigative team. "Petitioner must

convince the district court "by a preponderance of

evidence’ of the facts underlying the alleged constitutional

error." McKenzie, 27 F.3d at 1419, quoting Johnson v.

Zerbst, 304 U.S. 458, 469 (1938). Accord Mata, 449 U.S.

at 551. Hockett’s testimony of what Smith said Hind said

does not satisfy that burden in this case.

C. Conclusion

The Court finds no credible evidence connecting

either of the jailhouse informants with law enforcement

authorities at the time of the informants’ conversations

with McLain. Absent a law enforcement connection, the

Sixth Amendment claim fails. Kuhlmann, 477 US. at 459.

IV. Fourth Claim: Jailhouse Informants -- Brady Violation

"[T]he prosecutor’s withholding of evidence favorable

to the accused violates due process where the evidence is

material either to guilt or innocence. Favorable evidence

includes impeachment evidence." United States _v.

Brumel-Alvarez, 991 F.2d 1452, 1461 (9th Cir. 1992)

(citation omitted).

To prove a Brady violation the defendant must show

failure to disclose material evidence. Evidence is

material if "there is a reasonable probability that, had

the evidence been disclosed to the defense, the result

of the proceeding would have been different."

Brumel-Alvarez, 991 F.2d at 1461, quoting Bagley, 473

US. at 682.

As already explained in the context of Claim I],

McLain’s assertion that the prosecution failed to disclose

that Hind provided the jailhouse informants with their

information is unfounded. The jailhouse informants

obtained their information from McLain. There was

nothing more in this regard for the prosecutor to disclose.

The Attorney General does not dispute that

‘Detective Hind had promised to assist DeFilipis and

Hockett locate jobs upon being released and that Kossoris

failed to inform defense counsel of these promises.

Although this information probably should have been

disclosed to the defense or brought out during trial, in this

case ‘he information was ultimately not material.

The jailhouse informants received much more

substantial benefits that were significantly more tangible.

DeFilipis, for example, walked out of jail barely 3 hours

after speaking with Detective Hind and Deputy District

Attorney Keeney. He also acknowledged that he had

access to newspaper clippings that McLain kept regarding

the Ventura crimes and that he had served as an

informant many times before (possibly as many as 300

times). Pell even introduced a stipulation between himself

and Kossoris that DeFilipis’ own mother would testify that

she would not believe a word he said because he is an

incorrigible liar and has a horrible reputation for being

truthful.

The jurors learned that Hockett had an upcoming

probation revocation hearing and that Kossoris had

promised to write a_ letter describing Hockett’s

cooperation and would request leniency on Hockett’s

behalf. More substantially, Pell secured Hockett’s

admission that, in defense to his prior charges, Hockett

had feigned mental illness, including claims of auditory

and visual hallucinations and amnesia, to which Hockett

falsely testified in court. Hockett explained that while he

had been willing to lie about his own mental state, he was

not willing to lie about McLain’s statements even though

he had struck a deal in exchange for favorable testimony.

It was up to the jury to assess the credibility of this

assertion.

The jurors may well have credited both Hockett’s and

DeFilipis’ testimony. Any of the jurors, however, that

credited the informants’ testimony after Pell’s

cross-examination would not likely have been influenced

to discredit these informants upon learning that Hind had

also promised to assist them in finding a job upon being

released.

Furthermore, and equally important, as noted above,

the jailhouse informants were simply not the linchpin to

the prosecution’s case. Kosscris certainly capitalized on

the informants’ testimony throughout his closing argument

-- Often using their testimony as the glue that held

together various strands. (32 R.T. 7853-79; 32 R.T.

7867-73.) Kossoris, in fact, spent more time bolstering the

informants’ credibility than he spent attacking McLain’s

“incredible and unbelievable" story. (32 R.T. 7867-73,

7885-90.) Kossoris also used the informants’ testimony to

prove McLain’s role as a principal, which was important

for establishing death eligibility. But, notwithstanding

Kossoris’ significant reliance on the informant testimony,

the information not disclosed to defense counsel simply

cannot be found to be material. There is virtually no

likelihood that "competent counsel would have made a

different result reasonably probable," Kyles v. Whitley, 115

S. Ct. 1555, 1569 (1995), simply by being able to

additionally exploit evidence regarding the informants’

future job prospects.

V. Fifth Claim: Jailhouse Informants -- New Evidence

McLain reasserts the oft-repeated observation that

"death" is "different." Gardner v. Florida, 430 U.S. 349,

357 (1977) (plurality), Beck vy. Alabama, 447 U.S. 625, 637

(1980), Harmelin v. Michigan, 501 U.S. 957, 994 (1991).

Related to this, the Supreme Court has frequently

affirmed that "there is a corresponding difference in the

need for reliability in the determination that death is the

appropriate punishment." Woodson v. North Carolina,

428 US. 280, 305 (1976) (plurality), Johnson _v.

Mississippi, 486 U.S. 578, 590 (1988). Although the Court

has found this principle applicable to the guilt phase of

capital trials as well as sentencing, Beck, 447 U.S. at 638,

the circumstances have been far different from those in

the present case.

The unreliability asserted in this case is premised

upon the possibility that the informants’ testimony at trial

was untrue or, at least as to these informants, not

sufficiently reliable. What McLain essentially challenges is

Hockett’s and DeFilipis’ credibility. While implicitly

acknowledging that credibility determinations are to be

left to the jurors, McLain seeks to have these two

informants declared either incredible as a matter of law or

at least not sufficiently credible that the jury should not

have been allowed to rely on their testimony.

McLain, however, fails to present anything "new" as

to the informants’ credibility. The reasons for the

informants’ claimed unreliability were fully developed at

the state trial. Pell thoroughly cross-examined Hockett and

DeFilipis as to the circumstances of their conversations

with McLain, strongly challenged their veracity, and

highlighted their motivations to fabricate testimony against

McLain for their own benefit. The purportedly "new"

evidence is that these informants have now recanted and

re-recanted their stories. But this scenario was plainly

foreseeable to the trial jury. Although the events that have

transpired in the last 15 years -- and particularly in the last

three -- are events which could not have been known te

the jury prior to their having occurred, the circumstances

surrounding the jailhouse conversations were sufficiently

presented to the jury. The jury was entitled to evaluate

the credibility of the witnesses and determine the

likelihood that these witnesses’ biases or propensity for

falsehoods may have affected the credibility of their

testimony.

VI. Sixth Claim: Exclusion of Accomplice Histories

The sixth claim for relief asserts that because the trial

court excluded evidence relating to the credibility and

psychological condition of McLain’s two accomplices, his

conviction and death sentence have been unlawfully and

ee ee he ee ee ae, ee ee ne Se oe

unconstitutionally imposed in violation of the Sixth,

Eighth, and Fourteenth Amendments.

The irial court excluded evidence of Willis’ previous

attack on a child and prohibited cross-examination on, and

the admission of evidence concerning, Ketcherside’s prior

attacks on adolescent women, his mental defects, and his

commitment to a mental hospital. Additionally, the trial

court rejected a defense request that a psychiatric

examination of Ketcherside be conducted and denied

discovery that would have led to disclosures affecting

Ketcherside’s credibility and competency.

Petitioner alleges that the exclusion of this evidence

violated his rights under the Sixth and Fourteenth

Amendments to confront and cross-examine the witnesses

against him. He asserts that these are facts from which

bias, prejudice or lack of credibility might be inferred.

Specifically, he argues that evidence of Ketcherside’s prior

attacks on young women would have served to impeach

Ketcherside’s testimony that he was a mere bystander in

the Kelley incident. He further argues that the prior

attacks were relevant to show bias. He also asserts that

the fact that these prior attacks could have been used to

enhance any sentence that Ketcherside could have gotten

from the Kelley incident might have increased his

incentive to lie and implicate petitioner so that he could

receive immunity. Petitioner argues that this potential

impeachment was crucial because Ketcherside provided

the only direct evidence that petitioner was involved in the

Kelley murder.

Petitioner contends that the evidence of prior attacks

by Willis and Ketcherside was also relevant to his defense

that Ketcherside and Willis had committed the murder.

He argues that the fact that they had previously

committed assaults was crucial to prove that they had the

ability to conceive of such a plan on their own. Thus, he

asserts the guilt phase was tainted by the exclusion of the

evidence.

He argues that the penalty phase also was tainted by

the exclusion of evidence of Willis’ attack on a child and

Ketcherside’s attacks on females. This prevented the

defense from attacking the State’s picture of McLain as

having led two young innocents astray. It allowed the State

to argue that McLain was the ringleader.

Petitioner argues that the evidence sought to be

introduced fell within the exceptions set forth in California

Evidence Code s 1101. In general, section 1101 prohibits

evidence of character to prove conduct on a specific

occasion. The section does not, however, prohibit evidence

that a person committed a crime when relevant to prove

some fact other than his disposition to commit such acts.

Nor does section 1101 affect the admissibility of character

evidence to attack credibility. Petitioner asserts that the

evidence of the prior attacks by Ketcherside was not

offered not to prove that Ketcherside committed the

Kelley murder, but to discredit Ketcherside’s testimony

and rebut the State’s portrayal of McLain as leading two

young innocents astray.

McLain argues that the admission of evidence

concerning his prior rape convictions compounded the

prejudice flowing from the erroneous exclusion of the

evidence of Ketcherside’s and Willis’ histories of violent

attacks on women. The trial court allowed admission of

evidence of the petitioner’s prior sexual assaults against

Jodi Whitman and Lisa Donaldson: McLain argues that

this led the jury to view Ketcherside and Willis as

relatively innocent and passive in comparison to McLain.

Petitioner also requested a psychiatric examination of

Ketcherside to determine whether he was competent to

testify. Petitioner argues that the trial court erroneously

denied this examination given that it was reasonably

accessible, would have produced relevant evidence, and

was of central importance to an intelligent defense in this

trial.

The State asserts that at no time during the guilt

phase did McLain attempt to introduce evidence of Willis’

unadjudicated juvenile allegations of child molestation.

The State further argues that there is no

constitutional authority that holds that a state criminal

defendant is entitled to psychiatric examination of a

prosecution witness. Similarly, no constitutional authority

entitles the defendant to admission of prior unadjudicated

juvenile allegations of either a prosecution witness or an

accomplice to prove innocence or demonstrate remorse at

the penalty phase.

A. Guilt Phase

The Sixth Amendment, as made applicable to the

States by the Fourteenth Amendment, guarantees a

criminal defendant the right to confront witnesses against

him. Davis v. Alaska, 94 S. Ct. 1105, 1110 (1974). ""[A]

primary interest secured by it is the right of

cross-examination."” Id. (quoting Douglas v. Alabama, 85

S. Ct. 1074, 1076 (1965)). "’[T]he exposure of a witness’

motivation in testifying is a proper and important function

of the constitutionally protected right of

cross-examination."” Id. (quoting Greene v. McElroy, 79 S.

Ct. 1400, 1413 (1959) (evidence that prosecution’s main

witness was on probation should have been admitted as

evidence of bias)).

"[A] limitation on a cross-examination which prevents

a person charged with a crime from placing before the

jury facts from which bias, prejudice or lack of credibility

of a prosecuting witness might be inferred constitutes

denial of the right of confrontation guaranteed by the

Sixth Amendment." United States v. Garrett, 542 F.2d 23,

25 (6th Cir. 1976) (citing Davis, 94 S. Ct. 1105).

"[T]he focus of the prejudice inquiry in determining

whether the confrontation right has been violated must be

on the particular witness, not on the outcome of the entire

trial." Delaware v. Van Arsdall, 106 S. Ct. 1431, 1435

(1986). The inquiry to be made is whether "{a]

reasonable jury might have received a_ significantly

different impression of [the witness’] credibility had

[defense counsel] been permitted to pursue his proposed

line of cross-examination."”’ Olden v. Kentucky, 109 S. Ct.

480 (1988), quoting Van Arsdall, 106 S.Ct at 1436.

However, the denial of the right to confront witnesses

is not per se error requiring automatic reversal. It may be

harmless. Van Arsdall, 106 S. Ct. at 1437 (1986). On

direct appeal, if it is found that the Confrontation Clause

has been violated, reversal is required unless the reviewing

court can conclude that the error was harmless beyond a

reasonable doubt. Van Arsdall, 106 S.Ct at 1438.

However, a higher standard for prejudice applies during

collateral review. Brecht v. Abrahamson, 113 S.Ct 1710,

1722 (1993).

In the context of a habeas attack, the deprivation of

a constitutional right does not justify habeas relief unless

the error "had substantial and injurious effect or influence

in determining the jury’s verdict."” Brecht, 113 S. Ct. at

1722, quoting Kotteakos v. United States, 328 U.S. 750,

776 (1946). "Under this standard, habeas petitioners may

obtain plenary review of their constitutional claims, but

they are not entitled to habeas relief based on trial error

unless they can establish ‘actual prejudice.’ Brecht, 113 S.

Ct. at 1722. However, "when a habeas court is in grave

doubt as to the harmlessness of an error that affects

substantial rights, it should grant relief." O’Neil v.

McAninch, 115 S. Ct. 992, 998 (1995).

Brecht only applies to "trial error."

Trial error "occur[s] during the presentation of the

case to the jury," and is amenable to harmless-error

analysis because it "may ... be quantitatively assessed

in the context of other evidence presented in order to

determine [the effect it had on the trial]." At the

other end of the spectrum of constitutional errors lie

"structural defects in the constitution of the trial

mechanism, which defy analysis by *harmless-error’

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standards." The existence of such defects --

deprivation of the right to counsel, for example --

requires automatic reversal of the conviction because

they infect the entire trial process.

Brecht, 113 S. Ct. at 1717 (quoting Arizona v. Fulminante,

111 S. Ct. 1246, 1249, 1254 (1991)).

The denial of a defendant’s opportunity to impeach

a witness in violation of the Confrontation Clause

constitutes "trial error." See Van Arsdall, 106 S. Ct. at

1438.

There are three basic types of evidence Petitioner

argues should have been admitted: (1) evidence of Willis’

prior attack on a child; (2) evidence of Ketcherside’s prior

attacks on females; and (3) evidence of Ketcherside’s

mental defects and hospitalization, including evidence

from a psychiatric exam.

McLain fails to explain how excluding the evidence

relating to Willis violated his constitutional rights in the

guilt phase. Willis did not testify. Therefore, McLain had

no right to confront him. There was no violation of the

Confrontation Clause by the exclusion of this evidence.

Nor were McLain’s rights under the Confrontation

Clause violated by the trial court’s exclusion of evidence

of Ketcherside’s prior bad acts. To the extent it was at all

relevant to credibility, a reasonable jury would not have

received a_ significantly different impression of

Ketcherside’s credibility if the evidence had been

admitted. Defense counsel thoroughly cross-examined

Ketcherside. Pell attacked Ketcherside’s credibility by, for

example, casting doubt on Ketcherside’s story that he was

at the beach at the time of the Kelley murder, bringing

out Ketcherside’s different stories regarding the theft of

the Dodge Charger, and reading to the jury Ketcherside’s

prior inconsistent statements describing the events at

Whitman’s apartment. Even the prosecutor told the jury

to assume that Ketcherside was lying about his innocence

of the Kelley murder.

Defense counsel sought to impeach Ketcherside’s

statement that he remained at the beach. Even though

McLain was prevented from using Ketcherside’s prior bad

acts to do this, the prosecutor did as much in his closing

argument. He stated that it would be reasonable for the

jury to disbelieve Ketcherside’s testimony about his limited

role. (R.T. 7858.) In fact, the prosecutor told the jury to

assume Ketcherside was an accomplice. (R.T. 7845.) The

prosecutor also admitted that Ketcherside was not an

"angel" and was less than honest. (R.T. 7857.) Thus, a

reasonable jury would not have received a significantly

different impression of Ketcherside’s credibility if the

evidence had been admitted.

Excluding this evidence may have affected McLain’s

ability to present his defend on the basis that Willis and

Ketcherside, acting independently of McLain, murdered

Kelley. The defense was not able to inform the jury that

the persons being accused had violent propensities. But

this would have been an impermissible use of prior bad

acts evidence under California Evidence Code § 1101

because the defense could not use evidence of

Ketcherside’s and Willis’ prior bad acts to prove they had

a propensity to assault women and, therefore, probably

assaulted Kelley. Furthermore, the prior assaults were so

factually dissimilar to the Kelley crime that they had very

little, if any, probative value as to who murdered Kelley.

The exclusion of the evidence did not render the trial

fundamentally unfair and thus did not violate McLain’s

constitutional rights.

Finally, Petitioner asserts he should have been

allowed to conduct a psychiatric examination concerning

Ketcherside’s ability to tell the truth and been able to

present evidence of Ketcherside’s mental defects. Opinion

testimony of a witness’ ability to tell the truth is generally

inadmissible under the California law. Cal.Evid.Code §

805, People v. Cooks, 141 Cal. App. 3d 224, 302, 190 Cal.

Rptr. 211 (1983), cert. denied, 464 U.S. 1076 (1984). As

discussed above, the evidence that was admitted was

E32

hua

sufficient to attack Ketcherside’s credibility. Therefore, the

exclusion of this evidence did not violate the

Confrontation Clause. Moreover, jurors are the ones

assigned to measure the credibility of witnesses. The

denial of a psychiatric examination of the truthfulness of

Ketcherside was not fundamentally unfair.

Even if the exclusion of the evidence concerning

Ketcherside violated the Confrontation Clause, it is clear

that the exclusion of the evidence did not have a

“substantial and injurious effect" on the determination of

the jury’s verdict and therefore does not entitle McLain to

habeas relief. Any additional evidence to impeach

Ketcherside would have had a minimal effect, if any, on

the verdict. Evidence to prove Ketcherside and Willis were

capable of committing the Kelley murder on their own

would also have had a minimal effect, if any, on the

of evidence that supported the conclusion that Petitioner

was involved in the Kelley offense.

B. Penalty Phase

McLain complains that the exclusion of this evidence

enabled the State to argue that the fact that McLain led

astray two young and innocent juveniles was an

aggravating factor. McLain contends that he should have

been allowed to rebut this argument with evidence that

Willis and Ketcherside were not innocent and were fully

capable of violent acts prior to meeting McLain.

The Eighth and Fourteenth Amendments require that

the sentencer "not be precluded from considering, as a

mitigating factor, any aspect of a defendant’s character or

record and any of the circumstances of the offense that

the defendant proffers as a basis for a sentence less than

death." Lockett, 438 U.S. at 604 (plurality).

McLain’s argument fails because the State never

claimed that Ketcherside and Willis were innocent youths.

iii

On the contrary, Kossoris candidly acknowledged that they

were not. (R.T. 8820.)

The Court therefore denies the petitioner’s sixth

claim for relief.

VII. Seventh Claim: Exclusion of Collusion Evidence

Petitioner’s seventh claim for relief asserts that,

because the trial court excluded statements made by Willis

indicating collusion between him and Ketcherside against

McLain, his conviction and death sentence were unlawfully

imposed in violation of the Sixth, Eighth, and Fourteenth

Amendments.

According to Petitioner, Willis told a cell-mate, J.S.

Williams, that he and Ketcherside had attempted to "get

the story together” and "put it on” McLain. The

prosecution successfully excluded this evidence through a

motion in limine "to Exclude Inadmissible Hearsay

Statements by Theodore Willis.”

Petitioner asserts that the trial court excluded

Williams’ testimony on the grounds that it was hearsay

that did not qualify as a statement against penal interest.

He also asserts that the trial court excluded the testimony

of Dennis Morrison that Willis stated that he and

Ketcherside were attempting to put a story together to

blame McLain for the homicides.

Petitioner asserts that this evidence was important at

both the guilt and the penalty phases because it supported

the defense that Ketcherside and Willis committed the

murder and was, therefore, mitigating. He asserts that the

exclusion of the evidence violated his rights to due process

and to confront witnesses against him.

The trial court did not exclude evidence of collusion

as inadmissible hearsay. Rather, the trial court’s

"preliminary view" was that the statements were hearsay

not within any exception. Later, however, the trial court

recognized that the statements concerning an intent to

blame the crime on the petitioner were arguably

admissible. But the trial court also observed that such

evidence would raise the question of what crime

Ketcherside and Willis were attempting to pin on

petitioner and would entitle the prosecutor to attempt to

prove that it was the Solano County murder. The trial

court had previously granted a defense motion to exclude

evidence of the Solano crimes.

The testimony of Dennis Morrison was discussed on

the record. (R.T. 7456.) The trial court indicated that it

did not believe any statement made by Willis to Morrison

to the effect that he was attempting to place the blame for

a crime on the petitioner was a statement against penal

interest. Alternatively, the trial court noted that even if it

let in Morrison’s testimony, it would then let in evidence

of the murder in Solano County to allow the prosecution

to prove that the crime referred to by Willis was the

Solano County murder, not the Ventura County one. Once

the trial court expressed these views, defense counsel

never offered Morrison’s testimony.

The testimony of J.S. Williams was discussed several

times. The petitioner offered testimony by Williams

concerning: (1) statements by Willis to Williams wherein

Willis admitted shooting the victim; (2) observations of

Willis passing notes to Ketcherside and what Willis said

‘the notes were; and (3) statements by Willis that he and

Ketcherside were blaming a crime on McLain. The trial

court ruled that the first category of testimony was

admissible as a statement against penal interest. The

second was only admissible as far as observations made by

Williams, not anything said by Willis. The third was not

admissible as it was not a statement against penal interest.

(R.T. 7445-56.) However, the trial court also determined

that to the extent the first category of testimony was

admitted, the prosecution could explore who else was

involved in the murder. If the prosecution chose to go into

that area of evidence, then the testimony concerning

Willis’ statements that he was trying to blame the crime

on the petitioner would be admissible. But the statements

ee ee ane

by Willis that he was attempting to place the blame on

McLain would open the door for the prosecution to argue

that the crime referred to by Willis was the Solano County

murder, not the murder of Kelley.

The defense did not offer any testimony by Williams

-- not even the testimony that the trial court determined

was admissible.

The State argues that defense counsel made a tactical

decision not to elicit the evidence of the collusion, or

alternatively, that this ruling does not present a federal

question.

Federal courts will not disturb state court evidentiary

rulings on habeas corpus review unless the rulings violated

fundamental due process and the right to a fair trial.

Jammal v. Van de Camp, 926 F.2d 918, 919 (9th Cir.

1991). "[FJailure to comply with the state’s rules of

evidence is neither a necessary nor a sufficient basis for

granting habeas relief." Id.

However, habeas relief will lie if the evidentiary ruling

violated the Confrontation Clause and had a substantial

and injurious effect or influence in determining the jury’s

verdict. Van Arsdall, 106 S. Ct. 1431, Brecht, 113 S. Ct.

at 1722.

There is littie question but that defense counsel made

a tactical choice not to offer Morrison’s and Williams’

testimony for fear that it could open the door to the

Solano County murder which had been successfully

excluded from the trial. In a similar instance involving

blood evidence on Ketcherside’s trousers, defense counsel]

did not introduce the evidence after being informed by the

trial court that the prosecution would be allowed to argue

the blood on the trousers came from the Solano County

murder, not the Kelley murder.

Even if the petitioner’s trial attorney did not make a

tactical choice to omit this evidence and the trial court

erroneously excluded it, its exclusion did not render the

trial fundamentally unfair or violate the Confrontation

Clause so as to justify habeas relief.

Willis did not testify. Thus, any evidence that he and

Ketcherside coliaborated on their stories would not be

relevant to judging his credibility or for weighing the

significance of any similarities between their stories.

The statement that Willis and Ketcherside were

blaming a crime on McLain might be probative of

Ketcherside’s credibility and in judging McLain’s testimony

that he was not involved in Kelley’s murder. However, the

record is unclear as to which crime Willis was referring. It

could have been the Ventura County Kelley murder. It

could have been the Solano County Bazargani murder. Or

breaking into Whitman’s apartment, or stealing the Dodge

Charger, or some other crime. The trial court brought this

uncertainty to Pell’s attention. Pell did not seek to clarify

the record. Without the clarification, Pell failed to prove

the probative value of the evidence offered.

Furthermore, Ketcherside’s credibility was seriously

shattered both by defense cross-examination as well as by

the prosecutor himself. As a result, the additional evidence

addressed in the instant claim would not have caused a

reasonable jury to have a significantly different impression

of Ketcherside.

The Court therefore denies Petitioner’s seventh claim

for relief.

VII. Eighth Claim: Unreliability of Informant

Testimony Instruction

Petitioner’s eighth claim for relief complains that his

conviction and death sentence were unlawfully imposed in

violation of the Fifth, Sixth, Eighth, and Fourteenth

Amendments because the trial court failed to instruct the

jury that informant testimony must be examined with

greater care than the testimony of ordinary witnesses.

Petitioner asserts that the only live testimony

implicating the petitioner was from an immunized

accomplice and two jailhouse informants. He argues that,

in a death penalty case, the trial court must admonish the

; jury to examine testimony of an informant with greater

| care. He concludes that the failure of the court to give

| such an instruction sua sponte is unconstitutional.

| Federal courts have required a separate instruction

| directing juries to carefully examine informant testimony.

On Lee v. United States, 72 S. Ct. 967 (1952), Guam v.

Dela Rosa, 644 F.2d 1257 (9th Cir. 1980). Such an

instruction, however, is not constitutionally required. In

the present case, the lack of an instruction on the

unreliability of informant testimony did not render

Petitioner’s trial fundamentally unfair in violation of the

right to due process.

The majority of the informant testimony related to

admissions and confessions by McLain. The jury was

instructed to be careful of evidence of admissions or

confessions by McLain. (C.T. 1865, 1869.) Specifically, the

trial court instructed the jury that "[e]vidence of an oral

confession or oral admission of the defendant should be

viewed with caution." (C.T. 1865, R.T. 7978; see also C.T.

1866, R.T. 7979 ("oral admission" only).) The trial court

further instructed the jury: "No person may be convicted

... unless there is some proof of each element of the crime

independent of any confession or admission made by him

outside of this trial." (C.T. 1869, R.T. 7979-80.)

Additionally, the jury was given a detailed instruction

on judging the credibility of witnesses. The instruction

advised the jury that it "may consider any thing that has a

tendency in reason to prove or disprove the truthfulness

of [one’s] testimony ...." (C.T. 1854.) The instruction

allowed the jury to consider, among other things, a

witness’ "character for honesty or truthfulness or their

opposites" and "[t]he existence or nonexistence of a bias,

interest, or other motive.” (C.T. 1854.) Finally, the jury

was instructed that before it accepted the testimony of a

single witness as the sole proof of any fact to be proved by

the prosecution, it must "carefully review all the testimony

upon which the proof of such fact depends." (C.T. 1860.)

Thus, while the trial court did not expressly tell the

jury that it must be careful in examining informant

testimony, the trial court gave the jury sufficient guidance

on its duty to carefully examine all testimony and, in

particular, evidence of admissions by McLain. The

guidance specifically referred to the types of bias

potentially possessed by the informants and brought to the

attention of the jury on both direct examination and on

cross- examination.

Additionally, there was significant evidence presented

from which the jury could infer the informants’ bias and

motivation to fabricate.

Finally, there was extensive argument to the jury that

the informant testimony should be doubted. Thus, the

failure to give a separate instruction on the unreliability of

informant testimony did not render the trial fundamentally

unfair.

The failure of the trial court to give a special

instruction for informant testimony did not render

petitioner’s guilt conviction or death sentence arbitrary or

capricious and thus did not violate the Eighth

Amendment. The instructions that were given provided

adequate safeguards to ensure that the jury’s

determination was fair.

The Court therefore denies McLain’s eighth claim for

relief.

IX. Ninth Claim: Accomplice Instruction

Petitioner’s ninth claim for relief asserts that his

conviction and death sentence were unlawfully imposed in

violation of the Fifth, Sixth, Eighth and Fourteenth

Amendments because the trial court failed to instruct the

jury that Ketcherside was an accomplice as a matter of

law.

California Penal Code § 1111 defines an accomplice

as a person "who is liable to prosecution for the identical

offense charged against the defendant on trial in the cause

aN ai a aa

in which the testimony of the accomplice is given." That

definition encompasses aiders and abettors. Petitioner

argues that Ketcherside’s own testimony established that

he was an accomplice as a matter of law.

The trial court instructed the jury that, with respect

to the Whitman charges, if the jury found that those

offenses were committed by anyone, the jury had to find

that Ketcherside was an accomplice as a matter of law.

With respect to the Kelley murder charges, however, the

trial court did not instruct the jury that Ketcherside was

an accomplice as a matter of law.

Petitioner argues that the failure to instruct the jury

that Ketcherside was an accomplice as a matter of law

with respect to the Kelley offenses prejudiced both the

guilt and penalty determinations. Petitioner asserts that it

effectively relieved Ketcherside of criminal culpability with

respect to the Kelley offenses, especially when considered

in conjunction with the accomplice instruction relating to

the Whitman charges. Petitioner contends that since there

was no dispute that Kelley was murdered and the court

effectively instructed the jury that Ketcherside was not

| involved, the jury was led to find Petitioner guilty of the

| Kelley charges.

The Court properly refused to instruct the jury that

Ketcherside was an accomplice as a matter of law to the

Kelley charges. Under California law, whether a person is

an accomplice is a question of fact for the jury unless

there is no dispute as to either the facts or the inferences

to be drawn from them. McLain, 46 Cal.3d at 106.

Ketcherside admitted participating in the acts underlying

the Whitman charges and there was no evidence to the

contrary. However, there was evidence from which the

jury could have concluded that Ketcherside was not an

accomplice to the Kelley crimes.

Contrary to McLain’s argument, the trial court’s

failure to instruct the jury that Ketcherside was an

accomplice as a matter of law was not the equivalent of

instructing the jury that Ketcherside was not involved and

was not an accomplice. The trial court’s failure to instruct

left for the jury the question whether Ketcherside was an

accomplice. The jury was free to determine that he was an

accomplice. In fact, in closing argument, the prosecutor

told the jury to assume Ketcherside was an accomplice in

the Kelley crimes. (R.T. 7845.)

Thus, the trial court’s failure to instruct that

Ketcherside was an accomplice as a matter of law was not

erroneous. It neither tainted the trial nor rendered it

fundamentally unfair. The absence of the instruction did

not render the death sentence arbitrary or capricious.

There was no constitutional violation.

The Court therefore denies Petitioner’s ninth claim

for relief.

X. Tenth Claim: District Attorney Recusal

McLain’s tenth claim for relief asserts that Kossoris’

participation as the prosecutor denied him a fair trial and

due process of law because Kossoris harbored “extreme

personal prejudice" against McLain and because defense

counsel expressed an "intent to call Mr. Kossoris as a

material witness." (3d Am.Ptn., P 41, p.33.)

McLain claims that the State deprived him of an

important witness in his defense and deprived him of his

due process right to an impartial and disinterested

prosecutor when the trial judge denied his motion to have

Kossoris and the entire Ventura County District

Attorney’s Office recused from the prosecution.

Contrary to McLain’s contention, the trial court did

not overlook the evidence of Kossoris’ alleged personal

bias, but rather found in a separate, unreported hearing

that the showing was not substantial. McLain has failed to

show that Kossoris had a personal interest, financial or

otherwise, in the prosecution of the case that was

significantly different from the ordinary interest that

society has in bringing those charged with a crime to

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justice. As to the claim that the State deprived him of an

important witness, McLain has failed to identify any

evidence that was material to his defense, let alone

evidence that he had a "compelling need" to present

through the testimony of Kossoris. More importantly, the

trial court did not preclude McLain from calling Kossoris

as a witness nor did it act improperly by requiring an offer

of proof before Kossoris would be forced to take the

stand. Moreover, since Kossoris was not called as a

witness, the typical advocate-witness considerations did not

arise. Thus, the trial court’s refusal to disqualify Kossoris

on the basis of Kossoris’ status as a potential witness did

not interfere with McLain’s ability to present a defense.

A. The Claims Raise Federal Constitutional Errors

and are Cognizable on Federal Habeas Corpus

McLain does not complain about an alleged violation

of California Penal Code § 1424 -- the procedural

mechanism by which a motion to recuse the district

attorney is brought. Rather, he claims that his underlying

constitutional rights -- brought to the court via the § 1424

motion -- were violated. These are questions of federal

constitutional] law.

If McLain was denied the right to present material

evidence in his defense -- here, allegedly, Kossoris’

testimony -- McLain would be entitled to relief under the

Fifth Amendment due process clause and the Sixth

Amendment rights of confrontation and compulsory

process. Davis, 415 U.S. at 316-18, United States v.

Prantil, 764 F.2d 548, 552 (9th Cir. 1985). If, on the other

hand, Kossoris was allowed to give unsworn testimony

through his participation as an advocate, under certain

circumstances, McLain would be able to state a claim for

denial of his right to confront and cross-examine witness.

Prantil, 764 F.2d at 552. Alternatively, if Kossoris was

allowed both to testify and to serve as the prosecutor, the

situation could well raise "a matter of institutional concern

implicating the basic foundations of our system of justice,"

remediable through the due process clause depending, of

course, on the nature of the testimony. Prantil, 764 F.2d

at 553.

As to McLain’s claims of prosecutorial bias, the

Supreme Court has clearly recognized that the due

process clause imposes definite "limits on the partisanship

of ... prosecutors" and that the presence of a personal

interest in the outcome of a prosecution "may bring

irrelevant or impermissible factors into the prosecutorial

decision and in some contexts raise serious constitutional

questions." Marshall v. Jerrico, Inc., 446 U.S. 238, 249-50

(1980).

While the allegations and evidence are ultimately

insufficient to warrant relief, the claims nonetheless raise

issues implicating constitutional rights. The claims are not

premised on pure violations of state law; the claims allege

violations of the federal constitution. The Court must

review the claims on their merits to determine whether

these constitutional guarantees were in fact respected.

B. The Advocate-Witness Claims

"Federal courts have condemned the practice of a

government prosecutor testifying at a trial in which he is

participating as counsel." United States v. Marcello, 731

F.2d 1354, 1358-59 (9th Cir. 1984). Accord Prantil, 764

F.2d 548, 551-54 (9th Cir. 1985.) Yet, "this practice is not

of concern in the instant case where the prosecutors were

not called to testify.". Marcello, 731 F.2d at 1359.

McLain’s claims, therefore, must be analyzed in terms

of Kossoris’ absence from the witness stand, not on his

alleged presence there.

///

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McLain asserts some sort of constitutional error

based on Kossoris’ status as a potential witness. The

precise nature of the claim is unclear.

The petition itself does not allege that Kossoris was

a material witness. Instead, the contention is that recusal

was mandated because the defense attorney had declared

an "intent to call [the prosecutor] as a material witness."

(3d Am.Ptn., P 41, 33:26-27.) Standing alone, this bare

allegation is plainly insufficient to warrant relief. On the

face of the petition itself, McLain fails to suggest that

Kossoris personally knew any material information that

would have rendered the defense’s declared "intent"

anything other than frivolous. Cf. Rule 2(c), Rules

Governing § 2254 Cases. If there is no evidence to which

the prosecutor might properly testify, there is no error in

denying the recusal motion based on the prosecutor’s

alleged status as a "potential witness." Cf. United States

vy. Valenzuela-Bernal, 458 U.S. 858 (1982).

Indulging in the most generous reading possible in

light of the supporting legal argument, McLain seems to

be arguing that Kossoris was in fact a material witness and

that McLain was deprived of his right to compulsory

process when the trial court prohibited him from calling

Kossoris as a witness at trial. These arguments misread

the trial court record.

The trial court did not bar McLain from calling

Kossoris. Rather, the trial court did no more than express

skepticism about the admissibility and materiality of any

potential testimony from Kossoris. The trial court quite

clearly explained, however, that it was not precluding

McLain from calling Kossoris. It ruled only that McLain

would have to tender an offer of proof as to what McLain

intended to elicit from Kossoris before he would be

allowed to call Kossoris as a witness. (1 R.T. 115:16-22.)

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Both the state and federal courts concur that the

proponent of an item of evidence has the burden to

establish its admissibility. Beech Aircraft Corp. v. Rainey,

488 U.S. 153, 174 (1988), id. at 177 (Rehnquist, J.,

concurring and dissenting), People v. Adams, 149 Cal.

App. 3d 1190, 1194, 197 Cal. Rptr. 623 (1983), cf. Warner

Constr. Corp. v. Los Angeles, 2 Cal.3d 285, 298 n.14, 85

Cal. Rptr. 444 (1970). The trial court was rightly skeptical

of the relevance of any testimony that might be provided

by Kossoris. As such, the trial judge required an offer of

proof. In the offer of proof tendered with the motion to

recuse, the showing was manifestly insufficient as

explained in the following section. McLain never called

Kossoris to the stand nor attempted to make a further

offer of proof. Kossoris’ absence from the witness stand

was the result of McLain’s failure to press the issue and

the lack of relevant testimony available from Kossoris, not

the trial court’s ruling on the recusal motion.

2. Irrespective of the Trial Court’s Ruling,

McLain Makes No Showing that Kossoris

had any Relevant, Material Evidence to

Offer as a Witness

It is the jury’s prerogative to assess the value of

testimony; it is the trial judge’s duty to assure that the

testimony is relevant and admissible. Although the trial

court may not intrude into the jury’s province of

evaluating the exculpatory value of proffered testimony, it

is the trial court’s responsibility to rule on the basic

admissibility of testimony. Prantil, 764 F.2d at 554. Here,

McLain failed to make any showing to the trial court, and

again makes no showing here that any of the proposed

testimony from Kossoris would have been relevant to any

issue at trial. Moreover, he also fails to establish that this

evidence was not available from alternative sources.

"Recognizing the possibility for abuse," the Ninth

Circuit has erected a high threshold before criminal

defendants will be permitted to force the disqualification

of a participating prosecutor by designating them as

witnesses. Prantil, 764 F.2d at 554. As a preliminary

matter, "a defendant must demonstrate a ‘compelling

need’ before a participating prosecutor will be permitted

to testify." Prantil, 764 F.2d at 554, quoting United States

v. Tamura, 694 F.2d 591, 601 (9th Cir. 1982). McLain

makes no argument that this standard interferes with his

constitutional rights. The Court employs this standard in

analyzing McLain’s current claims.

McLain identifies no testimony that he would have

elicited from Kossoris. The Court is left to infer that

McLain is relying upon the matters identified in his

attorney’s motion.

Pell represented to the trial court that he would have

Kossoris testify that Kossoris believed McLain was

psychotic and would be likely to commit additional

offenses. As to factual guilt, this offer of proof was

obviously devoid of any relevance. Pell argued, however,

that Kossoris’ conclusions would be relevant to a mens

Rea or mental capacity defense at the guilt phase of the

trial and as evidence of McLain’s insanity at a sanity trial.

The trial court properly concluded, however, that Kossoris’

testimony on this issue was likely to be inadmissible lay

opinion and of minimal probative value.

Pell also suggested that Kossoris would be called to

testify that he "dared" McLain to "prove him wrong" that

McLain was guilty of the 1971 assaults on Whitman and

Donaldson. Whether Kossoris actually "dared" McLain,

however, was irrelevant. At most, to the extent the

prosecution theorized that McLain returned for revenge,

the only theory of relevance was McLain’s contention that

he returned to respond to the alleged dare. The issue

there, however, was McLain’s state of mind, not Kossoris’

statements. McLain was permitted to, and did testify, that

he returned to Ventura with an affidavit affirming

McLain’s innocence. Whether Kossoris had prompted

McLain to do so was of little import.

Thereafter, Pell switched gears and argued that the

significance of the "dare" was that, in fact, it did not occur

and thus was evidence of McLain’s insanity or diminished

mental capacity. Used in this manner, however, the

proposed testimony by Kossoris would have been

undisputed and could have been introduced by way of

stipulation. In such a situation, there would be no

compelling need for Kossoris to testify. Tamura, 694 F.2d

at 601.

McLain has identified no evidence that was material

to his defense, let alone evidence which he had a

“compelling need" to present through the testimony of trial

prosecutor Peter Kossoris. The trial court’s refusal to

disqualify Kossoris on the basis of Kossoris’ status as a

potential witness did not interfere with McLain’s ability to

present a defense.

C. Personal Bias

1. Legal Standards

McLain also argues that Kossoris’ participation was

improper because Kossoris harbored "extreme personal

prejudice" against McLain. The record confirms that

McLain failed to establish constitutionally impermissible

prejudice on the part of the prosecutor.

A claim challenging the personal bias of a prosecutor

raises important and conflicting concerns over the role of

advocates and the integrity of the criminal process. As

Judge Kozinski observed for a unanimous Ninth Circuit

panel, “lawyers representing the government serve truth

and justice first." United States v. Kojayan, 8 F.3d 1315,

1323 (9th Cir. 1993). "[Their] job," he continued, "isn’t just

to win, but to win fairly, staying well within the rules." Id.

This observation is founded upon considerations that have

been recognized since the turn of the century:

[A criminal prosecutor] is the representative not of

an ordinary party to a controversy, but of a

sovereignty whose obligation to govern impartially is

as compelling as its obligation to govern at all; and

whose interest, therefore, in a criminal prosecution is

not that it shall win a case, but that justice shall be

done.... He may prosecute with earnestness and vigor

-- indeed, he should do so. But, while he may strike

hard blows, he is not at liberty to strike foul ones. It

is as much his duty to refrain from improper methods

calculated to produce a wrongful conviction as it is to

use every legitimate means to bring about a just one.

Berger v. United States, 295 U.S. 78, 88 (1935). Accord

By PES EH Young v. United States ex rel. Vuitton et Fils S.A., 481

U.S. 787, 807 (1987), United States v. Hill, 953 F.2d 452,

458 (9th Cir. 1991).

These concerns apply with equal force to state

prosecutors. Sheppard v. Rees, 909 F.2d 1234, 1238 (9th

Cir. 1989).

"Because of this unique responsibility, federal

prosecutors are prohibited from representing the

Government in any matter in which they, their family, or

their business associates have any interest." Young, 481

US. at 803 (citing 18 U.S.C. § 208(a)). These limitations,

although not the federal statute, apply to state prosecutors

as well.

On two previous occasions, the Supreme Court has

held that the participation of an interested or biased

prosecutor directly implicates the fundamental fairness of

the trial itself. Marshall v. Jerrico, Inc., 446 U.S. 238,

Young, 481 U.S. at 808 n.19. At the same time, "the

standards of neutrality for prosecutors are not necessarily

as stringent as those applicable to judicial or quasi-judicial

officers." Young, 481 US. at 810.

Whereas judges are entrusted “to make the final

decision and whose impartiality serves as the ultimate

guarantee of a fair and meaningful proceeding in our

constitutional regime," Marshall, 446 U.S. at 250,

prosecutors are partisan advocates who “are necessarily

permitted to be zealous in their enforcement of the law."

Marshall, 446 U.S. at 248. While a judge must remain

impartial, "[p}rosecutors need not remain entirely ‘neutral

and detached." Id. The prosecutor’s role is compromised

when his or her official position is subject to being

misused to further ulterior objectives that are irrelevant to

the government's interest in vindicating the law. Marshall

446 USS. at 249-50, F.T.C. v. American Nat’! Cellular, 868

F.2d 315, 319 (9th Cir. 1989), Wright v. United States, 732

F.2d 1048, 1056 (2d Cir. 1984), cert. denied, 469 U.S. 1106

(1985). |

Although the Supreme Court expressly left open

"whether different considerations might be held to apply

if the alleged biasing influence contributed to prosecutions

against particular persons, rather than to a general

zealousness in the enforcement process," Young, 481 U.S.

at 810 n.22, quoting Marshall, 446 U.S. at 250 n.12,

McLain does not identify any other factors that this Court

should consider.

Quite significantly, however, "{t]he fact that a judge

has strong feelings on a particular crime does not

automatically disqualify him from sentencing those who

have committed that crime." United States v.

Borrero-Isaza, 887 F.2d 1349, 1357 (9th Cir. 1989). A

fortiori, since prosecutors are held to a lesser standard of

neutrality, Young, 481 U.S. at 810-11, Marshall, 446 U.S.

at 249-50, a prosecutor’s strong feelings about a particular

crime will not compel recusal from the case. One case

from the Second Circuit, however, has found it

inappropriate for lawyers to serve as prosecutors when

they have “an axe to grind against the defendant, as

distinguished from the appropriate interest that members

of society have in bringing a defendant to justice with

respect to the crime with which he is charged." Wright,

732 F.2d at 1056.

Beyond simply challenging Kossoris’ alleged partiality,

McLain asserts that the entire Ventura County District

Attorney’s Office should have been recused. "The general

trend of the law has been to limit the applicability of

vicarious disqualification rules to private organizations."

United States v. Lorenzo, 995 F.2d 1448, 1453 n.1 (9th

Cir.), cert. denied, 114 S. Ct. 225 (1993). Proof of

Kossoris’ bias is insufficient to require disqualification of

the entire Ventura County District Attorney’s Office.

2. McLain Made No Prima Facie Showing

of Bias

McLain submitted no evidence calling into question

the lack of personal bias on the part of the District

Attorney, Michael Bradbury. The record contains only one

piece of evidence relating to Bradbury: his letter to the

parole board in 1977 stating that the office was

"vehemently opposed” to the possibility of McLain’s early

release and calling McLain “one of the most depraved,

dangerous and heinous criminals ever to come out of our

county." (2 C.T. 402.) These remarks do not reflect any

ulterior motive or personal bias on the part of Bradbury.

They are nothing more than a statement of the office’s

and, possibly his own, "strong feelings on a particular

crime." Borrero-Isaza, 887 F.2d at 1357. McLain failed to

make a prima facie showing of personal interest on the

part of the Michael Bradbury and the Ventura County

District Attorney’s Office in general. There was no

constitutional error in the trial court’s denial of the motion

to recuse the entire District Attorney’s office.

McLain’s allegations and argument have focused

mostly upon Kossoris. Even assuming that personal

animosity would be sufficient to disqualify a prosecutor, in

this case the allegations are unsupported by the record. At

the outset, it should be confirmed that no one disputes

that Kossoris was not related by blood or marriage to any

of the victims, prosecution witnesses, or their families. Nor

is there any suggestion that Kossoris had any business or

financial dealings with any of them. McLain’s recusal

motion based on Kossoris’ alleged bias was premised on

the assumption that Kossoris had become close personal

| :

friends with the Whitman family. The record, however,

ultimately did not bear out this assertion.

Although McLain averred in conclusory form that

Kossoris was a close friend of the Whitmans, he did not

dispute Kossoris’ specific statements, sworn to under

penalty of perjury, that during 1971 and 1972 Kossoris’

_only contacts with the Whitman family were related to

keeping them informed of the status of the ongoing

prosecution, that he never met with the Whitmans at

social gatherings, and that he had no contact with the

Whitmans from the end of the 1971 case until the

beginning of the investigation of the 1979 case. McLain

did not question the veracity of these allegations. The trial

court was entitled to accept them as true.

McLain also asserted that Kossoris felt guilt and

personal responsibility for McLain’s 1979 crimes by not

having done all he could to prevent McLain’s early

release. It is true that in 1972, shortly after McLain was

sentenced, Kossoris filed a brief statement of his views on

McLain and McLain’s crimes pursuant to California Penal

Code § 1203.01. Therein, Kossoris characterized McLain

as “one of the most incorrigible criminals" and McLain’s

1971 crimes as "one of the most aggravated" he had ever

seen. He also opined that McLain was "highly dangerous,

psychopathic and totally immoral." Kossoris recommended

to the parole authority that McLain "[njever again be

released." Kossoris concluded by requesting the

Opportunity to testify if McLain was ever considered for

parole. (2 C.T. 377.)

Approximately a year after McLain was sentenced,

Kossoris was contacted by letter by McLain. In the letter,

McLain asked for assistance from Kossoris in obtaining

release from prison. In response, Kossoris suggested that

McLain refrain from calling upon the District Attorney’s

Office for any further assistance. He informed McLain

that he was unable to "work up any sympathy" for McLain

and that he was absolutely convinced that McLain was

indeed guilty of the crimes he was charged with, despite

McLain’s claims of innocence.

Kossoris, however, directly denied this allegation that

he felt guilty and personally responsible for McLain’s 1979

crimes. McLain did not dispute this point of Kossoris’

declaration as to Kossoris’ own state of mind and did not

seek a hearing thereon. In the absence of any disputed

facts, the trial court was entitled to accept Kossoris’

version as true without holding a formal hearing.

Kossoris acknowledged that he felt "especially

repugnant" toward McLain, expressed his belief that

McLain "deserves to die" for his crimes and that “any

punishment less than capital punishment would be

inappropriate." As for the assertions that Kossoris had

allegedly told Pell that he wanted to shoot, hang, or

poison McLain, Kossoris explained that these statements

had been taken out of context. As for the "shoot" and

"hang" comments, Kossoris stated that the context of the

conversation clearly indicated that these were only

expressions of his personal opinion as to the appropriate

punishment and, to the extent any suggestion was made

that the execution be extrajudicial, the context and

intonation clearly indicated that Kossoris was only joking.

Again, Pell did not dispute that his declaration

misrepresented the nature of Kossoris’ remarks and had

taken them ovt of context. The comments may have been

ill-conceived and unprofessional, but they do not show

impermissible bias.

As for the decision to seek the death penalty,

Kossoris explained that the decision to seek the death

penalty in the Ventura case was made by a three- person

committee consisting of Kossoris, the District Attorney

and the Chief Deputy District Attorney, and that the

decision to seek the death penalty was unanimous.

Kossoris said he told Pell of the decision before the

Solano trial because the decision was made before the.

Solano trial. The only accusation that remains unexplained

is the allegation that Kossoris said that the office would

proceed for a death verdict irrespective of any other

events. This lone comment, however, is too typical of

contentious posturing to support an inference of

unconstitutional bias.

The remaining allegations are not indicia of Kossoris’

personal bias as much as they are attempts to infer bias

from alleged prosecutorial overreaching. Kossoris allegedly

attempted to meddle with payment of the attorneys’ fees

by submitting a proposed scheduling order that would

have cut-off the attorney’s right to compensation in the

event that certain motions were not filed by a specified

date, irrespective of the reason for the delay. Kossoris

declared that the request to terminate the attorney’s

compensation was part of a motion for sanctions in light

of his perception that counsel was attempting to

unjustifiably delay the proceedings. (2 C.T. 376.) In

addition petitioner alleged that Kossoris may have made

improper argument to the jury. However such actions are

not the type of structural defects that were intended to be

included within the rubric of prosecutorial bias. These

instances arguably might be treated as by-products of bias

if it were found to exist. Standing alone, however, the

episodes are too similar to the problems that occur in

ordinary trials to provide a basis for inferring improper

prosecutorial bias. As noted by the Supreme Court,

adopting the rationale of the Sixth Circuit, allegations of

prosecutorial overreaching should be dealt with on their

own terms, separate from the rubric of impermissible bias:

It is true that prosecutors may on occasion be

overzealous and become overly committed to

obtaining a conviction. That problem, however, is

personal, not structural... [S}uch overzealousness

"does not have its roots in a conflict of interest. When

it manifests itself the courts deal with it on a

case-by-case basis as an aberration. This is quite

different from approving a practice which would

permit the appointment of prosecutors whose

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undivided loyalty is pledged to a party interested only

in a conviction."

Young, 481 U.S. at 807 n.18, quoting Polo Fashions v.

Stock Buyers Int’l, 760 F.2d 698, 705 (1985), cert. denied

482 U.S. 905 (1987).

While another prosecutor might have objected to

offering immunity to Ketcherside or using jailhouse

informants to establish McLain’s guilt, these decisions

were undeniably also motivated by far too many other

intangible factors to render these decisions reviewable by

this Court. At most, these could be considered aspects of

prejudice, if any existed. They are insufficient to create the

appearance of bias in the absence of concrete evidence.

The Attorney General goes one step further in

arguing that the trial court made implicit factual findings

that Kossoris was not personally biased and that these

factual findings are binding on this Court. 28 U.S.C. §

2254(d). This argument misreads the record. There is no

transcript of the hearing on the motion. (1 R.T. 102.) The

only written record clearly indicates that trial judge

concluded that McLain had failed to make a prima facie

showing of personal bias and, therefore, no further inquiry

was necessary. (2 C.T. 382.) To the extent there were

conflicting versions of the facts, the Attorney General fails

to explain how the trial judge could have made a

credibility determination based simply on the face of

paper declarations without holding a hearing. Cf. Data

Disc v. Systems Technology Assocs., 557 F.2d 1280, 1285

(9th Cir. 1977), Townsend v. Sain, 372 U.S. 293, 322

(1963).

D. Conclusion

McLain failed to show that Kossoris had a personal

interest in the prosecution of the case that significantly

differed from the ordinary interest society had in bringing

to justice those charged with a crime. McLain also failed

to establish that Kossoris "harbored extreme personal

prejudice" against McLain to such a degree that McLain

was deprived of his due process right to an impartial and

disinterested prosecutor.

McLain’s tenth claim for relief is denied.

XI. Eleventh Claim: Search and Seizure

In Stone v. Powell, 428 U.S. 465 (1976), the United

States Supreme Court held that "where the State has

provided an opportunity for full and fair litigation of a

Fourth Amendment claim, a state prisoner may not be

granted federal habeas corpus relief on the ground that

evidence obtained in an unconstitutional search or seizure

was introduced at his trial." Stone, 428 U.S. at 494. The

Supreme Court clearly identified the premise upon which

it was acting. It noted that the exclusion would apply only

to those "who have been afforded the opportunity for full

and fair consideration of their reliance upon the

exclusionary rule with respect to seized evidence by the

state court at trial and on direct review." Id., 428 U.S. at

489. Thus, the Ninth Circuit has reaffirmed that "[t]o be

eligible for habeas relief on Fourth Amendment claims, a

petitioner must demonstrate that the state court has not

afforded him a full and fair hearing on those claims."

Woolery v. Arave, 8 F.3d 1325, 1328 (9th Cir. 1993).

McLain argues that the State did not provide him a

full and fair opportunity to litigate his fourth amendment

claims because it denied his -- and has a practice of

denying all -- state habeas petitions raising fourth

amendment claims without an order to show cause,

thereby “routinely and systematically prevent[ing] the

actual litigation of such claims on the merits." (3d

Am.Ptn., P 42.F., p.38.)

The fault in this argument is that the state court did

not deny McLain the opportunity to litigate his fourth

amendment claims at either the trial or appellate level. In

fact, he secured full review at both levels. At the trial level

he actually litigated the fourth amendment claims and lost

on the merits.

At the appellate level, while California generally

frowns upon raising fourth amendment claims on

post-conviction habeas review, see In re Sterling, 63 Cal.2d

486, 487-88, 47 Cal. Rptr. 205 (1965), In re Harris, 5

Cal.4th 813, 830, 21 Cal. Rptr. 2d 373, 381 (1993), here

the state court actually considered the fourth amendment

claims and denied them on the merits. The absence of an

order to show cause did not prejudice him because

appellate review does not ordinarily entail relitigation of

the factual findings underlying the fourth amendment

claims. Since the state court did not rest its denial on the

procedural rule of Sterling and addressed the claim and

denied it on the merits, McLain was not deprived of

appellate review due to appellate counsel’s failure to raise

the claim earlier. The only difference between the habeas

denial and an affirmance on direct appeal is that, on

direct appeal, McLain would likely have been provided

with a written explanation for the reasons. Since a written

opinion ordinarily has no impact on federal habeas review

of fourth amendment claims, Stone, 428 U.S. 465, McLain

cannot show any prejudice from appellate counsel’s failure

to raise the issue on direct appeal. Even assuming

appellate counsel was deficient in not raising the fourth

amendment claims, McLain suffered no prejudice because

he actually obtained appellate review of the claims.

Furthermore, the rule of Stone is premised upon the

opportunity to raise and litigate claims, not the actual

litigation thereof. McLain clearly had the opportunity to

raise the fourth amendment claims on direct appeal, but

failed to do so. The California Supreme Court regularly

reviews fourth amendment claims on the merits when

raised on direct appeal. Sterling, 63 Cal.2d at 489.

McLain made no showing that he was unable to raise (or

was somehow prevented from raising) the issue during his

direct appeal, either through his opening brief or the

numerous supplemental briefs filed before the appellate

oa ee re - — a

opinion was filed. McLain was afforded the opportunity

and did not take advantage of it. This is not a fault with

the state procedures themselves. Stone applies. His fourth

amendment claims are not cognizable in this habeas

proceeding.

XII. Twelfth Claim: Prior-and Felony-Murder Special

Circumstances -- Failure to Establish Intent

Petitioner, in his twelfth claim for relief, asserts that

because the felony- murder special circumstance and the

prior-murder special circumstance were found to be true

without particular determinations of McLain’s intent to kill

or other culpable mental state, his death sentence was

unlawfully imposed in violation of the Fifth, Sixth, Eighth,

and Fourteenth Amendments.

There appear to be three arguments: (1) the

imposition of the death penalty was disproportionate in

violation of the Eighth

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