Appendix — Nilsen v. Borg

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| Supreme Court, U.S.

“~ FILED

94 1445 FEB 1 5 1995

OFFICE OF THE CLERK

No.

In the

SUPREME COURT OF THE UNITED STATES

Octoser Term, 1995

VANCE NILSEN, Petitioner

Vv.

ROBERT BORG, ET AL., Respondent

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

SUPPPLEMENTAL APPENDIX:

OPINION OF THE DISTRICT COURT

KENT A. RUSSELL

Russell and Russell

2299 Sutter Street

San Francisco, CA 94115

Tel: (415) 929-8301

Counsel of record for Petitioner

February 20, 1995

FILED

NOV 29 1993

RICHARD W WIEKING

CLERK, U.S. DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

ENTERED IN CIVIL DOCKET DEC 08, 1993

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

VANCE NILSEN,

No. C-90-1215-DLJ

ORDER

Petitioner,

V.

ROBERT G. BORG,

Warden,

Respondent.

Petitioner Vance Nilsen, who is incarcerated at Folsom

State Prison, filed a petition for a writ of habeas corpus on

April 25, 1990.1 Now before the Court are cross-motions for

1 Petitioner filed a separate habeas petition with a California

superior court in early February, 1993, containing substantially the

same claims now brought before us. Petitioner indicated ‘he is

“prepared and willing to dismiss that writ forthwith if the

issue...can be determined in [this] court at this time.” Second

Amended Habeas Petition (hereinafter “Petitioner's Mot. for Summ.

J.") at 4.

a

summary judgement on petitioner's claims, which are founded

largely on a recent confession by petitioner of limited

involvement in the murder for which he was convicted. At a

hearing before the Court on October 6, 1993, petitioner was

represented by Kent A. Russell of Russell & Russell, and

responded by California Deputy Attorney General David D.

Salmon.

i. BACKGROUND

The factual background and procedural history relating

to petitioner's conviction are detailed extensively in our Order

of April 5, 1993, which is deemed incorporated herein. In that

Order, we found petitioner's state remedies exhausted and

ordered respondent to file an answer to the habeas petition.

Following that Order, petitioner submitted a second amended

habeas petition, and respondent answered by seeking our

denial of that petition. The Court ordered inter alia that the

submitted pleadings would be treated as cross-motions for

summary judgment and that petitioners request for an

evidentiary hearing was denied pending summary judgement.

See Order, August 10, 1993.

Petitioner raises three claims in this habeas petition: his

right of confrontation was abrogated; his right to effective

assistance of trial and appellate counsel was denied; and, the

submitted jury instruction which led to his conviction were

violative of due process.

A. Confrontation Clause

Petitioner claims the trial court's exclusion of certain

evidence constituted a violation of his right of confrontation.

Petitioners allegations in this regard fall into three categories:

1.Psychiatric Evidence of Trejo’s Disorders

Petitioner alleges that damaging hearsay declarations,

purportedly made by Trejo prior to her disappearance, were

allowed before the jury. Petitioner does not specify precisely

which statements he alleges were erroneously introduced at

tral.

Petitioner also claims the trial court erred by excluding

vitally important psychiatric impeachment evidence. The trial

court disallowed evidence that, at age thirteen, Trejo was

placed under psychiatric care and supervision at the Finch

School with other emotionally disturbed children. Petitioner

sought to introduce records kept at the school and obtained

by trial counsel in order to impeach the credibility of

defendant's hearsay declarations, to demonstrate Trejo’s

purported sexual perversions, and to provide alternate

“a aha al rb ae

theories as to how Trejo might have met her death.

Petitioners Mot. for Summ. J. at 16. Those records include

analyses that Trejo had “clear indications of an underlying

schizophrenic process” and a “sexual identity problem” which

involved Trejo’s “wanting to cut off her breasts and have a

sex change operation.” |d, at 17. According to petitioner, this

evidence would have cast doubt ont eh prosection’s

portrayal of Trejo as “a normal teenage girl whose only

sexual dysfunction came through her relationship with

petitioner.” Id. at 18.

Petitioner also alleges error in the trial court’s exclusion

of the testimony of two psychiatric experts. These experts,

familiar with the school records discussed above, were

prepared to testify that Trejo: was a schizophrenic; had a

manifest disturbance in her sexual identity that was

exemplified in sexually masochistic fantasies; had a strong

death wish and suicidal fantasies; and , was prone to

hallucination and fabrication.

According to petitioner, the denial of cross examination

of the hearsay declarations and the exclusion of expert

testimony prevented the jury from considering that “any

number of the objects of her sexual fantasies--or even Trejo

ih ST IA Ries tall

herself--could have been responsible for her death.” Id. at 19.

2. Evi her ionshi

Practices of Trejo

Petitioner alleges the trial court improperly excluded

evidence of Trejo’s purported acts of sex and deviant

behavior with others. id. at 19-20. Included in this alleged

cache of improperly excluded evidence are allegations that

Trejo: associated with street gangs and common muggers

during the summer of 1983; was seen taking drugs frequently,

including shooting heroin; had various boyfriends and sexual

partners; and, was involved in a satanic cult. Id. at 19-22.

inin

nd Homicidal | |

Petitioner alleges the trial court erred in excluding

psychiatric evidence pertaining to petitioner's former wise,

which could have impeached her credibility. Petitioner alleges

that, by allowing the sensational and prejudicial testimony of

petitioner's former wise, and then disallow evidence of her

mental illnesses, petitioner was unduly prejudiced.

Petitioner first argues the trial court erroneously excluded

evidence that Joanne Nilsen suffered from conditions that

constituted either a “paranoid disorder’ or “paranoid psychotic

manifestations in a borderline personality.” Id. at 23. Second,

combined with this alleged instability, petitioner asserts error

in the exclusion of expert testimony that Joanne Nilsen’s

history of engaging in group sex, and her having been raped,

“affected her ability to perceive in a sexual context.” Id.

According to petitioner, this exclusion as particularly prejudicial

because it precluded (1) a meaningful challenge to JOanne

Nilsen’s assertion that petitioner had inserted an unloaded

gun in her vagina and pulled the trigger six times, and (2) a

determination of whether the event truly was “similar” for

purposes of calculating its admission as evidence. Id. at 22.

The defense also alleges trial court error in refusing

petitioner access to Joanne Nilsen’s psychiatric records

during her institutionalization for serious emotional disorders,

id. at 23, and in failing to review these records in camera. !d.

at 24.

B. Ineffective Assistance of Counsel

The gravamen of petitioners habeas claim and motion for

summary judgment consists of a newly disclosed confession

by petitioner. This new information mirrors the conte\nts of a

letter sent by petitioner to the victim’s mother in February of

1992, and constitutes the bulk of petitioner's ineffective

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assistance of counsel claim. Petitioner claims that, in

contradiction to the defense developed at his trial, he was

present at the death of the victim, Beth Trejo. Petitioner claims

that Trejo sought his assistance in committing suicide, and

that petitioner went through the acts of assisting in Trejo’s

suicide “in order to demonstrate to the decedent that she did

not in fact really want to commit suicide...” Petitioner's Mot. for

Summ. J. at 4. Due to intoxication, however, petitioner claims

he negligently failed to prevent the suicide from taking place,

and then unsuccessfully attempted to resuscitate petitioner.

Id. Only following her death, according to petitioner, did he

inflict the various wounds on Trejo’s body.

Petitioner claims he advised his trial attorney, James

Robert Courshon, of his involvement with Trejo’s death, and

that Courshon initially agreed to base petitioner's defense on

those facts. Id. However, according to petitioner, counsel later

elected to pursue a different strategy. Id. After the trial had

commenced, petitioner realized he could not testify in support

of the defense being presented without perjuring himself. Id.

Upon advising counsel he would not lie under oath, petitioner

followed counsel's advice not to take the stand. Id.

Petitioner's ineffective assistance of counsel claim is

pleaded also as to petitioner's appellate counsel, Andrew

Parnes, petitioner asserts the ineffective assistance of

counsel claim was not raised on petitioner's direct appeal

because Parnes had “concurred in the strategy pursued by

trial counsel, and went along with it on appeal.” Id. at 13. In

fact, petitioner claims he also revealed to Parnes his

involvement in Trejo’s suicide, but was told his only legal

option was to fight the case he had been “struck” with by the

trial counsel's strategy. ld. at 13, 33. The consequent

omission by appellate counsel of this argument creates,

according to petitioner, a separate basis for asserting the

ineffective assistance of counsel claim against his appellate

counsel. Id. Although petitioner did raise a generic species of

the ineffective assistance of counsel argument in state

collateral proceedings, that argument did not involve the claim

that petitioner was given the ultimatum of testifying falsely or

not at all. Id. at 14.

Petitioner also alleges the ineffective assistance of

counsel in other ways. Petitioner argues that despite “[going]

through the motions,” Id. at 25, the defense ultimately failed to

suggest an alternate explanation for Trejo’s death other than

that presented by the prosecution. “Thus petitioner never

had a fair chance to defend himself...” Id. Petitioner alleges

this result was the product of: (1) the defense losing its

credibility by questioning the identity of the decedent, despite

that verification being conclusively established by

acknowledged experts; (2) the defense not obtaining

substantial, available evidence of multiple cases of vaginal

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gunshot wounds and the non-sadistic motives for the

shootings; (3) the defense not introducing actual evidence of

the millions of .22 caliber weapons that could have been

PH el ew tlatioth abe li Paes: eR

used to shoot the decedent; (4) defense counsel failing to

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explain to petitioner the serious risks of failing to testify in this

type of case, and then telling at mid-trial petitioner it was “too

late” to testify; (5) defense counsel admitting to petitioner and

numerous witnesses that he had been inadequate; (6) no

family witnesses being called by the defense to rebut

allegations that petitioner was not a sado-masochist; (7)

defense counsel failing to have an expert testify as to the

cause of death, and (8) defense counsel's failure to make a

record to establish the existence of Griffin error during the

prosecution's closing statement. Id. at 25-35.

Petitioner also argues that the factors listed above

constitute actual prejudice. Petitioner acknowledges that those

tatiana OR 0 si ah ae aS

aspects of the case pointing either to petitioners possible

innocence or the dubiety of petitioner's guilt are now rendered

weaker or altogether useless in the wake of his recent

confession. See Respondent's Mem. of P. & A. in Resp. to

Answer and Retum at 5. Notwithstanding, petitioner specifies

certain issues which allegedly support his claim of harmful

error--(1) the failure of counsel to present the case of, and to

allow petitioner to take the stand concerning, petitioner's

asserted innocence led to the pursuit of an “all-or-nothing

strategy [which] exposed petitioner to a life-without-parole

sentence in the likely event that the jury did not accept the

[innocence] defense...” Petitioner's Mot. for Summ. J. at 47;

(2) the cross-examination sought by petitioner affects

resolution of the question whether Trejo committed suicide,

Petitioners Mem. of P. & A. in Resp. to Answer and Retum at

5; and (3) the argument that Joanne Nilsen’s testimony about

the “similar” should have been excluded, limited or subjected

to impeachment, impacts issues of intent and torture. Id.

C. All nial of Due Process in Jury Instructions

on Torture

Petitioner claims error in the submission of jury

instructions which enabled the jury to find petitioner guilty of

10

murder by torture without specifically finding the acts of torture

premeditated and deliberate, the cause of extreme and

prolonged pain to a living victim, and the actual cause of

death. Petitioners Mot. for Summ. J. at 49. Petitioner claims

the instructions actually submitted have been subsequently

revised and that because the given instructions did not

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require the jury to find, beyond a reasonable doubt, the

existence of each of the elements of the crime and special

6 a 9 gh OI

circumstance, a violation of federal law occurred. Petitioner's

Mem. of P. & A. in Resp. to Answer and Return at 6.

Moreover, since a finding by the jury of the special

circumstance mandates at least the imposition of a sentence

of life without possibility of parole, petitioner asserts an actual

prejudice. Petitioner Mot. fer Summ. J. at 49.

li. LEGAL STANDARD

The Federal Rules of Civil Procedure provide for

summary adjudication where “ the pleading, depositions,

answers to interrogatories, and admissions on file, together

with the affidavits, if any, show thai there is no genuine issue

as to any material fact and that the party is entitled to a

judgment as a matter of law.” Fed. R. Civ. P. 56(e).

In a motion for summary judgment, “[i]f the party moving

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for summary judgment meets its initial burden of identifying for

the court those portions of the materials on file that it believes

demonstrates the absence of any genuine issues of material

fact,” the burden of production then shifts so that “the

| nonmoving party must set forth, by affidavit or as otherwise

; provided in rule 56, ‘specific facts showing that there is a

| genuine issue for trial.”” T.W. Electric Service, Inc. v. Pacific

: Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987)

(citing Celotex Corp, v. Catrett, 106 S.Ct. 2548, 2553

(1983); Kaiser Cement Corp. v. Fischback & Moore, Inc., 793

F.2d 1100, 1103-04 (9th Cir.), cert. denied, 107 S.Ct. 435

(1986) (emphasis in original).

On cross motions for summary judgment, the burdens

faced by the opposing parties vary with the burden of proof

they will face at trial. To succeed on summary judgment, a

plaintiff must prove each element essential to the claims upon

which he seeks judgment by undisputed facts. Fontenot v.

Upiohn Co,, 780 F.2d 1190, 1194 (5th Cir. 1986) (party with

burden “must establish beyond peradventure all of the

essential elements...” (emphasis original)). In an influential

article, Judge Schwarzer phrased plaintiff's burden as

follows: “Where the moving party has the burden [of proof at

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attain ic oe

trial...,] his showing must be sufficient for the court to hold that

no reasonable trier of fact could find other than for the moving

party.” Schwarzer, Summary Judgment Under the Federal

Rules: Defining Genuine Issues of Material Fact, 99 F.R.D.

465, 487-488 (1984).

In contrast, a defendant's motion for summary judgment

faces a lighter burden. Because the defendant does not bear

the burden of proof at trial, the defendant need only point to

the insufficiency of the plaintiff's evidence to shift the burden

to the plaintiff to shift the burden to the plaintiff to raise

genuine issues of fact as to each claim by substantial

evidence. T.W. Electric Service, Inc. v. Pacific Elec

Contractors Assoc, 809 F.2d 626, 630 (9th Cir. 1987) (citing

Celotex Corp. v. Catrett, 106 S.Ct. 2548, 2553 (1983);

Kaiser Cement Corp, v, Fischback & Moore, Inc., 793 F.2d

1100, 1103-04 (9th Cir.), cert. denied, 479 S.Ct. 949 (1986).

lf plaintiff fails to raise a genuine issue of fact, then summary

adjudication in favor of the defense will be granted.

When judging the evidence at the summary judgment

Stage, the Court does not make credibility determinations or

weigh conflicting evidence, and is required to draw all

inferences in a light most favorable to the nonmoving party.

13

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LW. Electric, 809 F.2d at 630-31 (citing Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 106 S.Ct. 1348, 1356

(1986)); Ting v. United States, 927 F.2d 1509 (9th Cir. 1991).

Regardiess of who is the moving party, each party must

“establish the existence of the elements essential to [its]

case, and on which [it] will bear the burden of proof at trial.”

Celotex Corm., 106 S.Ct. at 2552. The Standard for judging a

motion for summary judgment is the same standard used to

judge a motion for a directed verdict: “whether the evidence

presents a sufficient disagreement to require submission to a

jury or whether it is so one-sided that one party must prevail

as a matter of law.” Anderson v. Liberty Lobby, Inc., 106

S.Ct. 2505, 2512 (1986).

In meeting their burdens of proof, each party must come

forward with admissible evidence. Fed. R. Civ. P. 56(e).

Conclusory, speculative testimony in affidavits and moving

paper is insufficient to raise genuine issues of fact and defeat

summary judgment. See Falls Riverway Realty, Inc. v.

Niagara Falis, 754 F.ed 49 (2nd Cir. 1985); Thomhill

Publishing Co. v. GTE Corp., 594 F.2d 759, 762-63 (9th Cir.

1980). Plaintiffs must ultimately persuade the Court in

opposing summary judgment that they will have sufficient

14

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admissible evidence to justify going to trial.

iil. DISCUSSION

Petitioner claims various trial court rulings concerning the

admissibility of certain evidence violated his right of confronta-

tion. An inquiry into the prejudice vel non resulting from the

alleged error--positing for a moment the truth of petitioner's

allegations--obviates the need for analysis of error; many of

these “errors” would be harmless beyond peradventure.

While habeas petitioners may obtain plenary review of

their constitutional claims, habeas relief is unavailable in the

absence of proof of “actual prejudice.” Brecht v. Abrahamson

113 S.Ct. 1710, 1722 (1993). Questions of prejudice on

collateral review are resolved by addressing whether the trial

court error “had substantial and injurious effect or influence in

determining the jury’s verdict.” |d, (rejecting on collateral review

standard under which state would be required to prove

asserted error was “harmless beyond a reasonable doubt’).

Moreover, the burden is ont he habeas petitioner, and not the

state, to make such a showing. Id. This analysis involves more

15

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OB adBie Natt sii IR caly s Pa Rite I) din GUNG Ns BEE RIDE heed SA RI aie Cott ale,

than a limited determination of how the error might have affected

the jury’s verdict, but requires an assessment of what the error

meant in relation to all else that happened during the trial. See

Brecht, 113 S.Ct. at 1724 (J. Stevens concurring) (citing

Kotteakos, 66 S.Ct. at 1248).

As a threshold matter, those arguments now raised by

petitioner which present a challenge to his involvement in

Trejo’s death are moot. See supra at 8; Respondent's Mem. of

P. & A. in Supp. of Answer and Retum at 1; Petitioners Mem.

of P. & A. in Resp. to Answer and Return at 5. Falling in this

category is much of that evidence evincing Trejo’s background,

which petitioner now challenges.

a. Hearsay Statements of Trejo

Petitioner does not specify precisely which statements he

alleges were erroneously introduced at trial. Taken together,

however, those statements purportedly assisted in establish-

ing Trejo’s state of mind as to the existence and purpose of her

visit to petitioner the night she died--to engage in sado-

masochistic sex with petitioner. Respondent's Answer and

Return to Order to Show Cause (hereinafter “Respondent's

Mot. for Summ. J.”) at 5. Admissions of these statements aided

the jury in finding precisely what petitioner now admits--his

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presence and involvement with Trejo on the night of her death.

Any arguable error in the admission of such hearsay evidence

is harmless, since the alleged trial error cannot be said to have

had “substantial and injurious effect or influence in determining

the jury’s verdict.” Brecht, 113 S.Ct. at 1722.

b. Sexual Relationships and Practices of Trejo

Petitioner also alleges error in the exclusion of evidence

conceming Trejo’s “sexual activity and contacts with extremely

unsavory persons and settings which would have furnished

alternate explanations for how Trejo came to her death...”

Petitioner's Mot. for Summ. J. at 20. Again, the trial court’s ruling

was not prejudicial; any such evidence which might have

supported allegations concerning third persons’ involvement in

Trejo’s death is mooted by petitioner's confession that he and

Trejo were unaccompanied on the night of her death. Moreover,

to the extent petitioner alleges this exclusion prejudiced him by

excluding the inference that Trejo killed herself, there is no

sufficient nexus between claims of excessive or deviant

sexual activity and suicidal tendencies to qualify that evidence

as relevant. Again, any arguable error in the omission of such

hearsay evidence cannot be said to have had “substantial and

injurious effect or influence in determining the jury's verdict.”

17

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Brecht, 113 S.Ct. at 1722.

cB Is and Psychiatric Testi C

Petitioner also claims error in the trial court’s handling of

evidence pertaining to Joanne Nilsen’s background and

credibility. The key item of evidence alleged to have been

erroneously introduced--the gun-in-vagina incident--was

certainly not prejudicial. Such evidence was sought and

introduced for the purpose of establishing the similarity of that

event to the manner in which Trejo was maimed. REspondent's

Mot. for Summ. J. at 15. As correctly found by a California court

of appeal, Joanne Nilsen’s testimony went primarily to the

question of petitioner's identity as the murder suspect. People

v. Nilsen, No. A032808, slip op. at 69 (Cal.Ct.App. Feb. 24,

1988). Any possible prejudice is therefore mooted by

petitioner's later confession, and cannot be said to have had

“substantial and injurious effect or influence in determining the

jury’s verdict.” Brecht, 113 S.Ct. at 1722.

Petitioners other evidentiary arguments pertaining to

limitations on testimony evincing Joanne Nilsen’s psychiatric

background and the trial court’s denial of access to discover

Joanne Nilsen’s psychiatric records, also go ultimately to the

18

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question of identity. Petitioner contends exclusion of this

evidence prejudiced him since the omitted evidence would

have affected issues of intent and torture. Petitioners Mem. of

P. & A. in Resp. to Answer and Return at 5. However, given

(1) the Court of Appeal’s finding that Joanne Nilsen’s

testimony addressed primarily the issue of identity, Respon-

dent's Mot. for Summ. J. at 15, (2) that the omitted testimony

speaks only incidentally, if at all, to the question of intent and

torture, and (3) that substantially similar material was available

with which to impeach Jeanne Nilsen at trial, see id. at 15, n.3,

the omitted testimony did not cognizably prejudice petitioner.

Accordingly, these pieces of evidence, challenged as either

erroneously admitted or omitted, did not constitute prejudice

even if improperly decided below.

jeer a petnaininn Lleene. ot 5 oason 0 tis Cont Without Men

Without directly addressing the prejudice question with

regard to petitioner's remaining evidentiary objections, 2 it is

2 Although we directly address the merits of these claims,

it appears likely that trial court error on these rulings would not, in

any event, have prejudiced petitioner. Petitioner asserts the

exclusion of this evidence was prejudicial because it denied

meaningful cross-examination on the issue whether Trejo had

committed suicide. Petitioner's Resp. to Answer and Return to Show

19

———— eo

clear that those evidentiary challenges are without merit. Each

remaining trial court ruling contested by petitioner involves a

decision properly within the discretion of the trial court.

Trial judges retain “wide latitude” in limiting cross-

examination based on concerns inciuding harassment,

prejudice, confusion of the issues and interrogation “that is

repetitive or only marginally relevant.” Delaware v. Van Arsdall,

106 S.Ct. 1431, 1435 (1986). “[T]he Confrontation Clause

guarantees aii Opportunity for effective examination, not cross

examination that is effective in whatever way, and to whatever

extent, the defense might wish.” Delaware v. Fensterer, 106

S.Ct. 292, 295 (1985).

a. All rror in Excluding Psychiatric R r

Pertaining to Trejo

Petitioner first challenges the exclusion of records

discovered from the Finch School relating to Trejo’s psychiatric

history. The trial court excluded this evidence upon an

examination of the records, concluding the records contained no

Cause at 5. it cannot be asserted that introduction of evidence

concerning Trejo’s psychiatric problems at a younger age would

have reasonably enabled a jury to conclude Trejo had committed

suicide, given the inability of counsel to locate an expert who would

testify that neither of the wounds was inflicted ante-mortem.

Accordingly, it cannot be said that inclusion of this evidence

affected the outcome of the trial. See Brecht, 113 S.Ct. at 1722.

20

sins ae

indication of the source of the clinical social workers’ psychiatric

history, that most of the information consisted of comments

made by social workers when Trejo was thirteen years old,

and that little of it was traceable to a psychiatrists’s evaluation.

Respondent's Mot. for Summ. J. at 6. The relevance of these

records to Trejo’s state of mind three years later is uncertain to

begin with, and particularly case into doubt by other records

which document changes Trejo underwent during her twenty

months at the school. See, id, Accordingly, the reliability and

probativity of this evidence places its exciusion squarely

within the discretion of the trial court.

b.

Pertaining to Trejo

Petitioner also challenges the exclusion of the psychiatric

evaluation of two experts. Petitioner had attempted to use the

testimony of these experts to diagnose Trejo’s psychiatric

State of mind. As neither expert had met Trejo, the anticipated

testimony would have been based primarily on the experts’

Studies of the Finch School records. Id. at 8. Given the Court's

holding that the exclusion of the Finch School records was

proper, this ciaim fails a fortiori, since the expert testimony

would have been based on propery excluded evidence.

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Petitioner's claim fails to meet either of the two predicate

elements for a claim of ineffective assistance of counsel. In

Strickland v. Washington, 104 S.Ct. 2052, 2064 (1984), the

Supreme Court held that a party must establish (1) that

counsel “made errors so serious that counsel was not

functioning as the ‘counsel’ guaranteed by the Sixth Amend-

ment’ and (2) “that these errors were so serious as to deprive

the defendant of a fair trial, a trial whose result is reliable.”

Although Herrera v. Collins, 113 S.Ct. 852 (1993), held

that a state court finding of guilt cannot be relitigated in a federal

collateral proceeding, the present claim is not barred by that

ruling. Claims of actual innocence pleaded in the context of an

alleged, independent constitutional violation are cognizable on

collateral review. Id. at 860. Here, petitioner's claim is viable

because his admission of limited involvement is relevant not to

assess his innocence per se, but to determine whether he

received prejudicial and ineffective assistance from his trial or

appellate counsel. See Respondent's Mot. for Summ. J. at 26.

Petitioner's claim of ineffective assistance of counsel fails

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because he cannot prove, on the basis of an objective

standard, that counsel failed to competently select petitioner's

defense in light of what he was told by petitioner and learned

from investigation. Strickland, 104 S.Ct. at 2066. In ascertain-

ing whether counsel's assistance was effective, a court's

scrutiny must be “highly deferential.” ld. at 2065. “It is ail to

tempting for a defendant to second-guess counsel's assistance

after conviction or adverse sentence, and it is all too easy for a

court, examining counsel's defense after it has proved

unsuccessful, to conclude that a particular act or omission of

counsel was unreasonable.” Id.

The choice by counsel at trial and on appeal not to defend

petitioner on the basis of limited involvement in Trejo’s death

was not incompetent. One way of characterizing petitioners

argument is that counsel acted ineffectively in portraying him

before a jury as entirely innocent when instead, counsel should

3. It is worth mentioning marginally that petitioner's claim

of innocence is highly problematic. To date, he has not located an

expert who would offer an opinion favorable to his position that the

torturous wounds were inflicted post-mortem. Respondent's Opp’n

to Petitioner's Mot. for Summ. J. at 1. Petitioner merely offers his

own opinion that another expert, having been informed that

petitioner attempted to resuscitate Trejo after he death, might have

offered a more favorable opinion. ld. at 9, nul.

23

have asserted he was only partially innocent. As respondent

argues, it is an attorney's duty to attempt an effective defense

even where his client is guilty. While an attorney is ethically

and legally barred from presenting false evidence or counsel-

ling perjury, no case has been cited finding incompetent or

unethical the presentation of a defense that denies the guilt of a

guilty defendant, and puts to the prosecution its burden of

proof. See Respondent's Opp’n to Petitioner's Mot. for Summ.

J. at 6.

Looking specifically to the defense offered by petitioner's

trial and appellate counsel, it is apparent petitioner was

afforded a meaningful legal defense. As respondent convincing-

ly argues, trial counsel and appellate counsel competently

selected petitioner's defense in light of what they learned from

petitioner and their investigations. Both the prosecution's

expert and the expert consulted for the trial defense agreed

that at least one of the wounds inflicted on Trejo was ante-

mortem. Id. at 10. Accordingly, if the defense could not find

some basis for discrediting these expert conclusions, then

petitioner's claim of limited involvement was, at the least, a

nearly insurmountable task of proof, and at the most, false.

See id. Given this background, counsel provided petitioner

24

with a reasonable defense.

Moreover, aS respondent persuasively argues, four

aspects of petitioner's defense, objectively looked at on the

eve of trial, indicate that defense counsel elected to pursue an

intelligent strategy. First, the issue of identity was open to

challenge, since there was no direct evidence linking petitioner

to the crime. Id. Second, a significant item of evidence sought to

be introduced by the prosecution--the “similar” act of inserting a

gun in Joanne Nilsen’s vagina- - was open to meaningful

challenge given her bias and her history of psychiatric

treatment. Id. Third, there was the reasonable hope for

petitioner that the court would exclude the hearsay statements

of Trejo which depicted a sexually deviant relationship with

petitioner. Id. Finally, Trejo's mother and aunt believed, on the

basis of a tape recording of what they would testify they

thought was Trejo’s voice, that she was still alive. id.

Accordingly, petitioner's claim of ineffective assistance of

counsel must fail because petitioner has not met his burden of

proving counsel provided him with a defense that was

objectively deficient. Under a “highly deferential” scrutiny,

counsel did not make “errors so serious that [they were] not

functioning as the ‘counsel’ guaranteed by the Sixth Amend-

25

ment.” Strickland, 104, S.Ct. at 2064.

Even were we to find that petitioner stated a viable claim

of ineffective assistance of counsel, petitioner would nonethe-

less fail to convince the Court that such ineffective assistance

prejudiced him. “The 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 probability is a probability sufficient to undermine

confidence in the outcome.” Strickland, 104, S.Ct. at 2068.

Counsel's failure to defend petitioner on grounds of limited

involvement in Trejo’s death, even if accurately described as

error, does not result in prejudice to petitioner. Had counsel

defended petitioner on the grounds of limited participation

purportedly suggested by petitioner, the defense would have

approximated the following script: Some time before her death,

Trejo began seeking petitioner's assistance in committing

suicide; petitioner first resisted such ideas, and then, merely “to

placate her’, routinely began to help Trejo commit suicide;

following a day of heavy drinking, petitioner met with Trejo on

the night of December 30, 1983, where they began acting out a

pseudo-suicide scene; petitioner then left Trejo momentarily for

a drink, and discovered upon returning that she had committed

26

hie oak See A he

ea ta Bt

suicide by suffocating herself; failing in nis attempts to revive

Trejo, petitioner proceeded to stab Trejo’s corpse, fire a gun

into Trejo’s vagina and dismember her corpse; petitioner then

“made the further mistake of trying to cover it up.” Letter from

Petitioner to Mrs. Margie Trejo of Feb. 10, 1992, Petitioner's

Supplemental Expanded Record, Ex. 102.

Compounded with the patent incredibility of this narrative,

the presentation of such a defense would have incurred other

obstacles: (1) all scientific evidence presented to the Court to

date indicates at least one of the wounds was inflicted ante-

mortem, such that a confession that petitioner was responsible

for the wounds would have been tantamount to a confession

of first degree of first degree torture-murder; (2) had petitioner

testified and denied he was a sexual! sadist, the prosecution

likely would have impeached him with Trejo’s diaries detailing

their sado-masochistic relationship; (3) had petitioner offered

his current wife’s testimony as to the normalcy of their sexual

relationship, petitioner could have been impeached by her own

admissions that their relationship involved the practice of

simulated rape, and could have been made to explain his

recent rental of a “Snuff” film. See Respondent's Mot. for

Summ. J. at 30-31. Collectively, these factors make clear that

27

petitioner suffered no demonstrable prejudice in not presenting

his theory of limited involvement in Trejo’s death does not

create a reasonable probability “sufficient to undermine

confidence in the outcome” of the trial. Strickland, 104 S.Ct. at

2068.

2. Petitioner's Other Clai l inaitective Assi

of Counsel

Petitioner also claims ineffective assistance of counsel as

the result of a number of alleged trial counsel errors: (1) the

defense losing its credibility by questioning the identity of the

decedent, despite that verification being conclusively

established by acknowledged experts; (2) the defense not

obtaining substantial, available evidence of multiple cases of

vaginal gunshot wounds and the non-sadistic motives for the

shootings; (3) the defense not introducing actual evidence of

the millions of .22 caliber weapons that could have been used

to shoot the decedent; (4) defense counsel failing to explain to

petitioner the serious risks associated with failing to testify in

this type of case, and then telling petitioner at mid-trial it was

“too late” to testify; (5) defense counsel admitting to petitioner

and numerous witnesses that he had been inadequate; (6) no

farnily witnesses being called by the defense to rebut

28

allegations that petitioner was not a sao-masochist; (7)

defense counsel failing to have an expert testify as to the

cause of death, and to establish that petitioner was not a

sexual sadist; and (8) defense counsel's failure to make a

record to establish the existence of Griffin error during the

prosecution’s closing statement. Id, at 25-35. In each of these

instances, the Court finds there was neither error committed by

counsel, nor any cognizable prejudice accruing to petitioner.

redibili ioning the identi f th

Decedent

Petitioner alleges the defense ‘ost its credibility by

a.

questioning the identity of the decedent, despite that verifica-

tion being conclusively established by acknowledged experts.

This challenge fails because, as mentioned above, there was

no direct evidence linking petitioner to the crime. Additionally,

Trejo's mother and aunt believed,on the basis of a tape

recording of what they would testify they thought was Trejo’s

voice, that she was still alive. Respondent's Opp’n to

Petitioner's Mot. for Summ. J. at 10. Therefore, counsel's

decision to challenge the identity of the decedent cannot be

deemed unreasonable under Strickland.

b. Petitioner's Claim that the Defense Erred in Not

29

| i | Evi fth rof

Mi Hav n

Petitioner claims the defense erred in not introducing actual

evidence of the millions of .22 caliber weapons that could have

been used to shoot the decedent. Given petitioners confes-

sion of limited involvement, this argument is rendered moot

insofar as it implicitly asserts petitioner's innocence. Compare

Respondent's Mem. of P. & A. in Supp. of Answer and Return

at 1; Petitioner's Mem of P. & A. in Resp. to Answer and Retum

at 5.

c. Petitioner im Trial nsel Erred in N

inin neral Evidence Pertainin Vaginal

Petitioner his trial counsel erred in not obtaining substan-

tial, available evidence of multiple cases of vaginal gunshot

wounds and the non-sadistic motives for the shootings.

Petitioner is mistaken in his facts; trial counsel elicited an expert

opinion that vaginal gunshot wounds, though uncommon, are

not unique, and occur with a predictable frequency. Respon-

dent's Ex. S at 4. The expert further testified that San

Francisco averaged about two such incidents annually, and

that the previous year witnessed six homicides involving such

wounds. Respondent's Mem. of P.& A. in Supp. of Answer

30

and Return at 35; RT 2230. Perhaps more significantly, since

petitioner's trial defense was premised on his asserted

innocence, it would have been anomalous and prejudicial to

petitioner to have emphasized t o the jury the frequency and

non-sadistic motives in inflicting such wounds.

d. Petit ‘s Claim that Trial C | Ered in Fail

to Explain to Petitioner the Serious Risks of Failing

to Testify

Petitioner claims defense counsel erred in neglecting to

explain to him the serious risks associated with failing to testify

in this type of case, and in then telling petitioner at mid-trial it

was “too late” to testify. A chronicle of those instances during

the trial in which petitioner elected to testify and not to testify

well illustrates that he was fully informed of the strategic

advantages and shortcomings in testifying. According to

petitioner's version of the events, petitioner first decided to

testify “falsely” as to his non-involvement in the crime; then,

upon realizing he would be required to perjure himself,

petitioner opted not to testify. See Respondent's Mem. of P. &

A. in Supp. of Answer and Retum at 42. Following completion

of the prosecution's rebuttal, petitioner investigated with the

court as to his involvement in Trejo’s death. Id. at 42-43.

Petitioner concluded he would not testify. Id. at 43-44. When

31

the defense finally rested, petitioner again changed his mind

and told trial counsel he wanted to testify. Once again, after

discussing the likely effect of petitioner's anticipated testimony

under direct and cross-examination, petitioner concluded he

would not testify. Id. at 44.

These facts alone indicate the decision ultimately not to

testify was made knowingly. Moreover, the factual backdrop

against which petitioner chose whether or not to testify makes

clear his final decision was made wisely; petitioners proposed

testimony would have confronted countless obstacles at

cross-examination,a s respondent has forcefully argued. See

Respondent's Mem. of P. & A. in Supp. of Answer and Return

at 45.

e. Petitioner’ laim that Trial nsel_ Admi

Inadequate Performance as Trial Counsel

Petitioner claims defense counsel admitted inadequacy in

its representation of petitioner. As a threshold matter, trial

counsel's remarks have been taken somewhat out of context.

See Respondent's Ex. S at 11-14. More importantly, however,

an assertion by trial counsel as to his own incompetence is of

little value in assessing whether counsel's performance was

truly constitutionally deficient. Were a court to give controlling

32

effect to such an admission, “then the attorney’s strategy

[would] creates a foolproof defense...We cannot allow such

schemes to succeed.” Toomey v. Bunnell, 898 F.2d 741, 744

& n.2 (9th Cir. 1990) (no prejudice where counsel apparently

violated ethical rules to enable client to succeed on appeal).

The appropriate inquiry in an ineffective assistance of counsel

analysis is not what an attorney thought of his own perfor-

mance, but rather, as the Court has discussed above, what an

objective, competent attorney would have done under like

circumstances. Supra at 18; see also Strickland, 104 S.Ct. at

2064.

: . ? 7

to Call Family Witnesses

Petitioner claims trial counsel erred in failing to call to the

stand family witnesses to rebut allegations that petitioner was

a Sado-masochist. Had petitioner's current wife, Janis Nilsen,

taken the stand in petitioner's trial, her testimony concerning the

couple's “tender and gentle” sex life could have been seriously

undercut by reference to petitioners subsequent confession of

inflicting the vaginal gunshots and dismembering Trejo’s body.

See Respondent's Mem. of P. and A. in Supp. of Answer and

Return at 40. Moreover, trial counsel claims he learned facts

33

from Janis Nilsen which belie her assertions of a “normal” sex

life. For example, the petitioner and Janis Nilsen acted out a

fantasy in which petitioner would crawl in through their window

and simulate raping Janis Nilsen. id. at within the range of

professional competence.

to Have an Expert Testify as to Trejo’s Cause of

Death

Petitioner claims that defense counsel erred in failing to

have an expert testify as to Trejo’s cause of death, and to

establish that petitioner was not a sexual sadist. In fact, trial

counsel did consult experts on both of these topics. Three

experts concurred in the opinion that at least one of the

wounds inflicted on Trejo was done so pre-mortem. See

Petitioner's ex. 15 at 1006; Respondent's Ex. S; RT 136, 140-

41. To this date, in fact, petitioner has not located an expert

willing to testify that neither of the wounds was inflicted prior to

Trejo's death. Respondent's Reply at 5.

Concerning petitioner's denial he was a sexual sadist, trial

counsel in fact retained the services of an expert to consider

the matter. Upon examining both petitioner and Janis Nilsen,

Dr. Donald Lunde, a psychiatrist at Stanford University,

advised trial counsel he would be unable to support petition-

34

ers claim he was not a sexual sadist. Trial counsel met any

obligation of diligent investigation and acted competently in

electing not to offer expert testimony that petitioner was not a

sexual sadist.

h. Petitioners Claim that Trial Counsel Erred in Failing

* | | f

Griffin Error

Petitioner claims counsel committed error in failing to make a

record to establish the existence of Griffin error during the

prosecution's closing argument. Petitioner specifically argues

that trial counsel failed to make an adequate record to show that

the prosecutor pointed at petitioner in arguing to the jury that

“he” had not explained the letter he sent to Trejo’s aunt about

January 4, 1984, which contained petitioner's fingerprint.4 In

fact, defense counsel did object. RT 2170. Moreover, petitioner

has not shown how any arguable incompetence in failing to

make a better record has resulted in prejudice to petitioner.

4 The letter, written in what appeared to be Trejo's

handwriting, stated Trejo was moving to New York because her life

in California had been unhappy and because she was seeking a new

identity. The letter further stated Trejo would call her aunt and

mother the following Christmas. See Order, April 5, 1993. In his

recent confession, petitioner admits sending this letter. See Letter

from petitioner to Mrs. Margie Trejo of Feb. 10, 1992, Petitioner

Supplemental Expanded Record, Ex.

35

In sun, each of these assertions of ineffective assistance

of counsel falls into that class of claims which do not amount to

an unreasonable choice of strategy, or an insufficient pursuit of

diligence under Strickland. In addition, it would be difficult to find

the type of prejudice cognizable under Strickland in any of the

above allegations.

C. Jury Instructions

Petitioner claims that two of the instructions submitted to

the jury--conceming first degree murder by torture, and the

special circumstance finding of intentional torture--effected a

deprivation of his constitutional rights. Specifically, petitioner

claims error in the submitting of instructions which enabled the

jury to find petitioner guilty of murder by torture without finding

(1) that the acts of torture were premeditated and deliberate,

(2) that they caused extreme and prolonged pain to a living

victim, and (3) that these acts were the actual cause of death.

Petitioner's Mot for Summ. J. at 49. Petitioner claims the

instructions actually submitted have been subsequently

revised, and provides citation to the current version of

California Jury Instructions, Criminal (CALJIC). In raising

claims for failure to properly instruct the jury, an alleged error of

State law does not state a claim cognizable on federal habeas

36

corpus review. Engle v. Issac, 456 U.S. 107, 119 (1982);

Walker v. Endell, 850 F.2d 475-76 (9th Cir. 1987). To obtain

collateral relief for error in the jury charge, a petitioner must

show the ailing instructions so infected the entire trial that the

resulting conviction violates due process by rendering the trial

fundamentally unfair. Estelle v. McGuire, 112 S.Ct. 475, 482

(1991).

Petitioner alleges a constitutional violation on the premise

that he instructions did not require the jury to find the existence

of each of the elements of the crime and special circumstances

beyond a reasonable doubt. Petitioners Mem. of P. & A. in

Resp. to Answer and Return at 6. Moreover, since a finding by

the jury of the special circumstance mandates at least the

imposition of a sentence of life without possibility of parole,

petitioner asserts an actual prejudice. id, at 49.

Wile any such violation likely would constitute prejudice,

we need not reach that question here, since the jury instruc-

tions actually given do not violate due process. Petitioner's

argues:

In the instance case, the instructions actually given to

the jury were later modified by the California Judicial

Council to add elements omitted by the prior instructions.

Although this is not necessarily equivalent to a finding that

the jury instructions given at petitioners trial were deficient,

37

because the CALJIC modifications were based on

California Supreme Court cases which defined and

Clarified the law in effect at the time of petitioner's trial the

CALJIC modifications were based on Califomia Supreme

Court cases which defined and clarified the law in effect at

the time of petitioner's trial, the CALJIC modifications tend

to illustrate how gaps in the instructions actually given

may have given rise to Winship/Sandstrom error.

Petitioner's Mem. of P. & A. in Resp. to Answer and Retum at

16. Petitioner additionally argues, later in his brief, that “it is far

from clear that the jury was properly instructed in this case as a

matter of Califomia law.” Id. at 20.

These two arguments fail. Initially, the jury instructions

actually given to petitioner were found by a California court of

appeal to conform to California law. Respondent's Mot. for

Summ. J. at 16. Moreover, as a matter of federal law, it cannot

be successfully argued that modifications of jury instructions, in

the conceded absence of any deficiency in those instructions,

constitutes a deprivation of federal due process. The CALJIC

instructions are not authoritative instructions of state law, but

reflect only the interpretations of California law given by the

Committee on Standard Jury Instructions, Criminal, of the Los

Angeles Superior Court. See Respondent's Mot. for Summ. J.

at 16.5 Accordingly, in the absence of any failing in the

Submitted jury instructions, respondent’s motion for summary

judgment on this claim is granted.

IV. CONCLUSION

The Court grants respondent's motion for summary

judgment, and denies petitioner's motion for summary judgment,

on all claims. Petitioner's request for an evidentiary hearing is

also denied, as unnecessary following today’s decision. The

Court accordingly ORDERS as follows:

1. Petitioner's motion for summary judgment is DENIED.

2. Respondent's motion for Summary judgment is

GRANTED.

IT 1S SO ORDERED.

Dated: November 29, 1993.

s/_ D. Lowell Jensen

United States District Judge

Moreover, a modification of jury instruction by CALJIC

does not necessarily reflect a belief by its authors that the former

instructions was legally deficient.

39