Appendix — Woodford v. Douglas

~ Supreme Coun, U.o. 7 OS

FILED (9)

021424 MAR 25 2003~

No.

IN THE SUPREME COURT OF THE UNITED STATES

JEANNE WOODFORD, Warden, Petitioner,

Vv.

FRED BERRE DOUGLAS, Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT.

APPENDIX

BILL LOCKYER

Attorney General of the State of California

ROBERT R. ANDERSON

Chief Assistant Attorney General

GARY W. SCHONS

Senior Assistant Attorney General

WILLIAM M. WOOD

Supervising Deputy Attorney General

PAT ZAHAROPOULOS

Deputy Attorney General

Counsel of Record

110 West "A" Street, Suite 1100

San Diego, CA 92101

P.O. Box 85266

San Diego, CA 92186-5266

Telephone: (619) 645-2209

Fax: (619) 645-2191

Counsel for Petitioner

TABLE OF CONTENTS

Appendix A -

United States Court of Appeals

for the Ninth Circuit, OPINION 1 - 25

Appendix B -

Order Denying Petition

For Writ Of Habeas Corpus 26 - 132

APPENDIX A

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FRED BERRE DOUGLAS, No. 01-99004

Petitioner-Appellant, D.C. No.

CV-91-03055

V. . RSWL

JEANNE S. WOODFORD, OPINION

Warden, of California State

Prison at San Quentin,

Respondent-Appellee.

Appeal from the United States District Court

for the Central District of California

Ronald S. W. Lew, District Judge, Presiding

Argued and Submitted

September 11, 2002 - Pasadena, California

Filed January 24, 2003

Before: Mary M. Schroeder, Chief Judge,

Michael Daly Hawkins, and William A. Fletcher,

Circuit Judges. _

Opinion by Judge Hawkins

COUNSEL

Mark A. Borenstein, Shapiro, Borenstein & Dupont, Santa

Monica, California, for the petitioner-appellant.

Pat Zaharopoulos, Office of the Attorney General for the State

of California, San Diego, California, for the respondent-

appellee. _

OPINION

HAWKINS, Circuit Judge:

Fred Douglas, a California death row inmate, appeals from

the denial of his petition for a writ of habeas corpus. Because

we find that Douglas's counsel was constitutionally ineffective

in failing to investigate and present significant mitigating

evidence to the jury , we grant relief as to the penalty phase, but

deny all his other claims. ;

FACTUAL AND PROCEDURAL BACKGROUND

In 1984, Douglas was convicted in California state court of

the 1982 murders of two teenage girls, Beth Jones and Peggy

Krueger. The case against Douglas was based primarily on the

immunized testimony of his accomplice, Richard Hernandez,

whose testimony was substantially corroborated by other wit-

nesses.

Douglas was linked to the missing girls by Dana Lee, who

testified he had met Douglas about a month before the mur ders.

Douglas had asked if Lee knew of any women who would pose

for nude photographs. Lee introduced Douglas to Krueger, who

in turn introduced Douglas to Jones. The girls told Lee and their

roommate, Terry Allmon, that they planned to pose nude for

money. Allmon testified that Jones told her if she wasn't back

by noon the next day, "something was wrong." When Jones did

not return, Allmon notified the girl's mother.

Hernandez's testimony supplied most of the details about

the murders. Hernandez had been working in Douglas's

furniture refinishing shop, and was paid in food, beer, lodging

and occasional spending money. According to Hernandez, he

and Douglas drove Krueger and Jones to the desert near Indio.

Douglas told Hernandez to lay a sheet on the ground and pre-

pare drinks for the four of them. An hour later, Douglas

instructed the victims to remove their clothing. When Krueger

asked to see the money, Douglas showed her a $100 bill.

Douglas then instructed Hernandez to tie the victims' feet and

hands and retrieved a rifle from his car, telling them "here is the

camera." He ordered them to make love to each other and for

ten to fifteen minutes paced back and forth shouting orders at

the victims.

Douglas cut Krueger on the neck with a razor blade and

sucked on the wound for about ten minutes. He then retrieved

a beer and told Hernandez the women “just couldn't go back."

Douglas instructed the victims to orally copulate him. At this

point, Hernandez claims he briefly left the scene. When he

returned, he saw Douglas choking Jones. Hernandez said

Krueger appeared dead and blood was spurting from her mouth.

Hernandez claims he tried to stop Douglas, but Douglas

knocked him down and Hernandez was too intoxicated to stop

him. After choking Jones, Douglas struck her in the neck with

the rifle.

Douglas and Hernandez went to a nearby bar for a drink

and then returned to the murder scene. Douglas ordered

Hernandez to bury the bodies and left for an hour. When

Douglas returned, they dumped the victims' clothing and drove

back to Douglas's business, where they burned the victims'

identification.

Hernandez and Douglas were questioned by police shortly

after the murders. Both gave an alibi Douglas had concocted

before the crime about spending the day fishing in Oceanside.

The two left for Canada that evening. About six weeks later,

they drove to Nevada and changed license plates, then drove to

the murder site to check the graves. Toward the end of 1982, the

men returned to Canada, and then Douglas left wenn telling

Hernandez where he was going.

The girls' bodies were discovered in 1983. Hernandez had

by this time returned to Orange County. Upon learning of the

discovery and that there were warrants for their arrest,

Hernandez and Douglas fled to Mexico. Douglas left three

weeks later, but Hernandez remained for nearly ten months until

he was taken into custody by Mexican authorities on different

charges. Before speaking to American authorities, Hernandez

was beaten by Mexican officers and ultimately confessed to his

role in the murders. Douglas was arrested in Las Vegas in

February 1984, waived extradition and was returned to

California.

At the guilt phase of Douglas's trial, the State corroborated

Hernandez's description of events with testimony about a

similar incident with Douglas a few years prior to the crime.

Kathy Phillips testified that she was a friend of Hernandez, who

often supplied her with drugs and lived next door to Douglas's

furniture refinishing shop. Hernandez introduced Phillips to

Douglas in 1979. buuglas told her he would pay her if she

posed nude for photographs while in bondage. She agreed, and

Douglas took her to his shop, tied her hands and ankles, and

gagged her mouth. He showed her photos of several other

women to indicate how he wanted her to pose. He told her to

"look scared," but did not harm her.

Phillips went on to describe how, two weeks later, Douglas

asked her if she would assist him in killing young women in the

desert while making sex films that included bondage and

sadism. Douglas apparently believed having a woman present

would make it easier for the victims to trust him. Phillips

testified that Douglas told her that his plan was to bury the

bodies to eliminate any evidence and that they could make a lot

of money selling the films to "people in Las Vegas." Phillips

refused to participate in the scheme, but did not go to the police

because of her drug habit. Her contact with Douglas ended

when she was convicted of burglary and sentenced to jail.

Douglas presented an alibi defense. Douglas's long-time

friend, Henry Akers, testified that on the morning of the

murders he had spoken to Douglas at the same time Hernandez

claimed he and Douglas were driving to the desert with the

victims. This story was consistent with the one given by Akers

to police at the beginning of their investigation, but was

substantially impeached during the prosecution’ s rebuttal.

Douglas also called an acquaintance of Krueger's who

testified she saw what she thought were the victims at a mall a

month after the date of the murders. Krueger's boyfriend

testified that he believed Krueger had left on the day of the

murders to visit friends, and that after Krueger's disappearance

he had confronted Lee about a man named "Doug," whom Dana

Lee described as having an appearance that differed from

Douglas's.

The jury convicted Douglas of first degree murder and

found the special circumstance of multipie murder, making him

death eligible. At the penalty phase, Julia McGettrick and

Vickie Pendleton testified of separate incidents in 1976 in

which Douglas forced or frightened them into posing for nude

photographs or performing sex acts in the desert. A third

woman, Pamela Williams, testified that in 1977 Douglas had

picked her up hitchhiking and sought her participation in a plan

to make movies involving the torture and killing of young

women. Douglas was charged with attempted murder and other

crimes arising out of this plan, and, after the jury deadlocked,

eventually pled nolo contendere to solicitation to commit a

felony.

In mitigation, the defense introduced testimony by

Douglas's wife, son, a friend and a neighbor. The witnesses

testified generally about Douglas's good character, nonviolent

nature, generosity and difficult background as an orphan. The

jury returned a verdict of death, and the trial judge confirmed

the sentence.

Douglas's convictions and sentence were upheld on direct

appeal. He filed for federal habeas relief in 1992. Federal

proceedings were stayed while Douglas exhausted several —

claims in state court. The district court granted an evidentiary

hearing on some claims, including Douglas's claim of

ineffective assistance of counsel, and then ordered briefing on

all the claims in the petition. The district court ultimately denied

Douglas's petition in November 2000, but granted a Certificate

of Appealability ("COA") as to two issues, involving ineffective

assistance of counsel. Douglas's motion to broaden the COA

was granted in part by this court, adding additional claims

concerning the admission of Hernandez's testimony, Douglas' s

competence to stand trial, and improper argument by the State

during the penalty phase closing argument. F

STANDARD OF REVIEW

Douglas's federal habeas petition was filed prior to the

enactment of the Antiterrorism and Effective Death Penalty Act

of 1996("AEDPA"). Accordingly, pre-AEDPA standards apply

to his claims. Lindh v. Murphy, 521 U.S. 320, 322-23 (1997).

The district court's decision to grant or deny a 28 U.S.C. § 2254

petition is reviewed de novo. Bean v. Calderon, 163 F.3d 1073,

1077 (9th Cir. 1998). The district court's refusal to hold an

evidentiary hearing is reviewed for abuse of discretion. Caro v.

Calderon, 165 F.3d 1223, 1225-26 (9th Cir. 1999).

DISCUSSION

I. INEFFECTIVE ASSISTANCE OF COUNSEL

Douglas alleges that his trial counsel was ineffective

because he failed to investigate and develop a mental health

defense at the guilt phase and because he failed to introduce

mental health and social background evidence in mitigation at

the penalty phase of the trial. We review Douglas's claim

according to the familiar standard set forth in Strickland v.

Washington, 466 U.S. 668 (1984). Douglas must prove that his

counsel’ s performance was deficient and that it prejudiced the

outcome of his trial. Jd. at 689, 694. "Whether a defendant

received ineffective assistance of counsel is a legal question

reviewed de novo." Smith v. Yist, 826 F.2d 872, 875 (9th Cir.

1987).

A. Guilt Phase - Mental Health Investigation

[I] Trial counsel has a duty to investigate a defendant's

mental state if there is evidence to suggest that the defendant is

impaired. See Bean, 163 F.3d at 1078. In this case, Douglas's

trial counsel, George Peters, recognized that a psychiatric

defense might be an option. Early in the case, he had a

psychiatrist, Dr. Sharma, and a psychologist, Dr. Rogers,

appointed to help. At the time, Douglas was experiencing severe

claustrophobia in his jail cell, a problem apparently related to

having been locked in a closet by abusive adoptive parents as a

child. Because Douglas was focused on his claustrophobia,

Peters had a difficult time getting him to concentrate on his

defense, and initially engaged the mental health experts to assist

in this problem, in particular, by asking them to try to get an

individual cell for Douglas.

Although Peters directed the experts to focus primarily on

the claustrophobia issue, he testified that he also instructed them

to see if there was anything of a psychological nature that could

be useful in the defense. Each doctor performed some brief

interviews and testing, and found no indications of any major

mental disorders. Dr. Rogers did suggest that additional testing

could be done, and Peters requested and received $35,000 for

additional mental health testing.

Further tests, however, were never performed. Douglas

received a private cell at the jail and, as the district court found,

then refused any further cooperation in mental health testing.

This finding is not clearly erroneous. There was substantial

testimony from Peters that although he broached the subject

with Douglas several times, Douglas was adamant that he did

not want any psychological issues introduced at trial, that he

was innocent and that he wanted to use an alibi defense.

Douglas's attitude was corroborated by one of the investigators

Peters had hired to help with the case.” While Douglas was

willing initially to consult with the doctors, there is no

indication he was willing to do so after receiving his own cell.

Strikingly absent is any testimony by Douglas to the contrary

.On these facts, we cannot say the district court clearly erred

when it determined that Douglas would not submit to further

psychological testing. Therefore, Peters did not err by failing to

obtain further testing, as Peters could not secure such testing

without his client's cooperation”

1. Peters had two investigators appointed who were very

experienced with complex criminal cases. One investigator died

prior to Douglas's habeas proceeding.

2. Because of this conclusion, we do not consider for

prejudice purposes the testimony Douglas introduced from

various experts at the evidentiary hearing, but only the

ae .

i ‘

This conclusion does not, however, as the State would have

it, absolve Peters of all responsibility for further investigation

into a mental health defense. Indeed, as we recently explained,

"if a client forecloses certain avenues of investigation, it

arguably becomes even more incumbent upon trial counsel to

seek out and find alternative sources of information and

evidence, especially in the context of a capital murder trial."

Silva v. Woodford, 279 F.3d 825, 847 (9th Cir.), cert. denied,

123 S. Ct. 342 (2002); see also Agan v. Singletary, 12 F.3d

1012, 1018 (llth Cir. 1994) ("An attorney cannot blindly follow

a client's demand that his [mental state] not be challenged. . .

and end [ ] further inquiry regarding [the defendant's] mental

fitness when [the defendant] refused to submit to psychiatric

examination.").

In this case, as it turns out, there was a significant

alternative source of information that was readily discoverable.

Although Peters ordered and reviewed the file pertaining to

Douglas's 1977 offense, he failed to discover an order contained

in that file directing Dr. Louis Broussard to administer a

psychological examination to Douglas. Based on his 1977

interview and testing with Douglas, Dr. Broussard concluded

that Douglas was suffering from "serious and outstanding

mental illness and possible organic impairment." He found that

Douglas was confused, his thought processes chaotic, and that

he suffered from severe paranoia. Dr. Broussard believed his

test results indicated "some level of pre-existing neurological

deficit," which may have interacted with brain damage later in

life stemming from Douglas's chronic alcoholism, constant

exposure to toxic solvents in connection with his furniture

refinishing business, and a serious head injury sustained in an

automobile accident in 1967. Based on his observations, Dr.

information Peters could have obtained without Douglas's

cooperation. ‘

10

Broussard had informed Douglas's attorney in 1977 of his

opinion that: (1) Douglas might not be competent to stand trial;

and (2) it was reasonably certain Douglas did not have the

capacity to plan and execute the actions with which he had been

charged. |

[2] Peters admits that he learned of Dr. Broussard for the

first time during the habeas proceedings. Peters also testified

that he "would have loved to have" had the mental health

information Dr. Broussard developed for use during the trial.

Even the State concedes that it was professional error not to

discover Dr. Broussard.’ We therefore agree with Douglas that

Peters's investigation of his mental health was deficient.

B. Guilt Phase Prejudice

Notwithstanding the inadequacy of Peters's mental health

investigation, Douglas cannot succeed on his claim unless he

demonstrates-a "reasonable probability" that the outcome of the

proceeding would have been different. Strickland, 466 U.S. at

694. With respect to the guilt phase, Douglas has not borne this

burden. ;

[3] To establish a legal defense to first degree murder,

Douglas would have had to prove that he lacked the ability to

premeditate and deliberate. At the evidentiary hearing, Dr.

Broussard testified that Douglas's mental state in 1977 was like

that of a long-term institutionalized patient and that Douglas

would be unable to function in society Dr. Broussard's opinion

on Douglas's ability to premeditate was questioned by the

3. Dr. Broussard maintained an office in Orange County

at the time of Douglas's trial and his phone number was listed

in the phone book. Thus, had Peters noticed the order in the

1977 file, it would have been easy to contact Dr. Broussard.

1]

district court, which gave it “little weight" because Dr.

Broussard's impressions of Douglas's abilities were contradicted

_ by objective evidence that Douglas had been running his own

furniture refinishing shop and two bars, things Dr. Broussard

testified Douglas simply could not be doing.

[4] In contrast, the State's evidence overwhelmingly

pointed to premeditation and deliberation. Phillips testified that

Douglas had taken photographs of her in bondage and asked her

to participate in a murder plot two years before the murders.

Lee testified that Douglas had asked him if he knew of any

young girls who would be photographed nude. Hernandez

testified that Douglas had picked out a remote spot in the desert

ahead of time, created an alibi for them in advance (and then

gave police that story when questioned), and that Douglas-

packed a rope, a gun and a shovel for the trip to the desert. In

light of this substantial evidence, we conclude that it is not

reasonably probable that the jury would have accepted Dr.

Broussard's testimony that Douglas lacked the ability to

premeditate and deliberate the murders. We therefore agree with

the district court that Douglas did not establish prejudice at the

guilt phase.

C. Penalty Phase - Social Background Investigation 4

In addition to the inadequate mental health investigation,

Douglas also contends that Peters conducted an inadequate

investigation into his social history and failed to prepare

witnesses adequately for the penalty phase of the trial. Douglas

again was less than helpful. When asked about his childhood,

Douglas reported that his parents were dead and that his past

was a "blank." According to one investigator, Douglas would

not provide the names of relatives or friends regarding

childhood abuse. The investigators thus pursued other avenues,

including interviewing Douglas's wife, son, friends and

neighbors. Peters spent virtually no time preparing these

12

witnesses for their testimony at the penalty phase. Douglas's

wife asserts that she did not even know she would be testifying

until the night before the penalty phase began.

The mitigation evidence presented was minimal. Two

witnesses testified that Douglas had an aversion to the sight of

blood-and several testified as to his nonviolent nature, in an

apparent attempt to focus on "lingering doubt" of whether

Hernandez's story was completely true. Against Douglas's

wishes, Peters did introduce some sociological history. His

family members testified in very general terms that Douglas had

been orphaned and had a difficult childhood, running away from

home at fifteen to join the Marines. They also indicated that

Douglas was very poor growing up and always kept large

quantities of food in his home, apparently as a result of this

childhood deprivation.

In his closing, Peters argued that these factors may have

created a'"demon" within Douglas that had finally surfaced after

years and years of a normal life. Peters attested during the

habeas proceedings that at the time he was making the closing

argument, he was afraid Douglas was going to "leap out and

grab me around the throat" for disregarding his wishes.

Douglas contends here that much more information should

have been discovered and presented at the penalty phase. At the

evidentiary hearing, he presented detailed testimony of a

difficult childhood. Douglas was abandoned as a child and

raised by foster parents, including an abusive alcoholic foster

father who locked him in a closet for long periods of time. He

grew up in an extremely poor Chicago neighborhood where

children had to scavenge for food in garbage cans and often ate

lard or ketchup sandwiches. After running away at the age of

fifteen to join the Marines, Douglas was arrested and put in a

Florida jail where he was beaten and gang-raped by other

inmates.

13

Additional character evidence was also available. In the

Marines, Douglas earned a number of medals and

commendations and also helped rescue two drowning sailors.

Another witness testified that Douglas had been very helpful to

her during her pregnancy and marital difficulties.

Finally, Douglas presented additional evidence of possible

brain damage. After the military, Douglas began working in

furniture refinishing and was exposed to toxic solvents daily.

In 1967, Douglas was involved in a serious auto accident and

suffered a concussion and damage to his left temporal lobe. He

also consumed a great deal of alcohol on a daily basis from

1966 to 1977.

[5] We first consider whether Peters's investigation of

Douglas's social history was inadequate. Douglas was not

forthcoming with useful information, but, as noted above, this

does not excuse counsel's obligation to obtain mitigating

evidence from other sources. Silva, 279 F.3d at 846-47. When

it comes to the penalty phase of a capital trial, "[i]t is imperative

that all relevant mitigation information be unearthed for

consideration." Caro, 165 F.3d at 1227. This duty to investigate

is not limitless, however; "it does not necessarily require that

every conceivable witness be interviewed." Hendricks v.

Calderon, 70 F.3d 1032, 1040 (9th Cir. 1995). For example, in

Babbit v. Calderon, we found that counsel was not ineffective

for failing to uncover a family history of mental illness where

counsel’ s investigators spoke with family members and friends

who might have had such information, but none of them

reported any history of illness. 151 F 3d 1170, 1174 (9th Cir.

1998).

[6] "[C]ounsel is not deficient for failing to find mitigating

evidence if, after a reasonable investigation, nothing has put the

counsel on notice of the existence of that evidence." Id.

(internal quotation and citation omitted). In this case, however,

14

the initial investigation did put counsel on notice that Douglas

had a particularly difficult chiidhood, yet there was no attempt

to contact persons who might have had more detailed

information about Douglas's past. Peters's failure to prepare the

witnesses adequately for testimony at the penalty phase also

meant that the testimony that was introduced was less than

compelling. Indeed, even though Peters knew that Douglas had

spent a great deal of time locked in a closet, a factor which

contributed to his severe claustrophobia, Peters did not elicit

any testimony regarding this fact from Douglas's family.

[7] It was also easy to ascertain that Douglas's line of work

exposed him to toxic solvents, yet Peters did not investigate the

effects of this exposure or inform the mental health experts who

examined Dougias of this fact. See Caro v. Woodford, 280 F.3d

1247, 1254-56 (9th Cir.), cert. denied 122 S.Ct. 2645 (2002)

(finding counsel ineffective for failing to investigate effects of

long term exposure to neurotoxicants). Evidence regarding a

serious head injury in a 1967 automobile accident could have

been detected from medical records or from Dr. Broussard (had

he been discovered). In sum, although Peters did perform some

investigation, it was constitutionally inadequate. The

information Peters did obtain about Douglas's troubled

childhood revealed the need to dig deeper, and he did not

adequately prepare the witnesses in order to present the material

he did gather to the jury in a sufficiently detailed and

sympathetic manner. We therefore conclude that Peters's

investigation and presentation of social history at the penalty

stage was deficient.

D. Penalty Phase - Prejudice

Having found that Peters did not conduct an adequate -

investigation into Douglas's mental health or social background,

we consider whether it is reasonably probable that this

-additional evidence could have affected the outcome of the

15

penalty phase. As a preliminary matter, we recognize that in

some recent cases when a defendant has insisted that mitigating

evidence not be presented, we have analyzed prejudice in terms

of whether the additional evidence would have changed the

defendant's mind. See, e.g., Hayes v. Woodford, 301 F.3d 1054,

1070 (9th Cir. 2002); Landrigan v. Stewart, 272 F.3d 1221,

1228 (9th Cir. 2001). We do not believe such a test is applicable

in the case here, in which counsel actually disregarded his

client's wishes and did put on what mitigating evidence he had

unearthed. Thus, in this case, it was not the client's desires

which impeded Peters's efforts, but rather, Peters's failure to

uncover the additional evidence that creates the problem.

We also note that even when we have placed emphasis on

the client's desires, we have required that the client make an

"informed and knowing" decision not to present mitigating

evidence. Jeffries v. Blodgett, 5 F.3d 1180, 1193 (9th Cir.

1993); see also Silva, 279 F.3d at 847 (holding that counsel has

duty to "try to educate or dissuade" the defendant about the

consequences of actions). It is, of course, difficult for an

attorney to advise a client of the prospects of success or the

potential consequences of failing to present mitigating evidence

when the attorney does not know that such evidence exists. See

Landrigan, 272 F.3d at 1228 ("[I]f the investigation had been

more thorough, [defendant] would have had more information

from which he could make an intelligent decision about whether

he wanted some mitigating evidence presented.").

[8] Moreover, we have been careful to note that although

the client's desires are not to be ignored altogether, it may be

inappropriate for counsel to acquiesce to the client's demands.

As we recently held in Williams v. Woodford, counsel "cannot

be faulted for deferring to the defendant's desire to forgo

presentation of mitigating evidence when the defendant's wish

coincides with counsel's reasonable professional judgment that

no mitigating evidence be introduced.” 306 F.3d 665,720 (9th

16

Cir. 2002) (emphasis added); see also Campbell v. Kincheloe,

829 F.2d 1453, 1462 n.5 (9th Cir. 1987) (holding counsel not

ineffective for adhering to a client's desire not to present

evidence when counsel had legitimate strategic reasons for not

presenting the evidence). "[C]ounsel must, at a minimum,

conduct a reasonable investigation enabling him to make

informed decisions about how best to represent his client."

Sanders v. Ratelle, 21 F.3d 1446, 1456-57 (9th Cir. 1994)

(emphasis omitted); see also Jennings v. Woodford, 290 F.3d

1006, 1014 (9th Cir. 2002) ("[A]ttomeys have considerable

latitude to make strategic decisions. . . once they have gathered

sufficient evidence upon which to base their tactical choices.")

(emphasis in original). Instead, as in Silva, Peters "could not

make a reasoned tactical decision about the trial precisely

because ‘counsel did not even know what evidence was

available.’ "279 F.3d at 847 (quoting Deutscher v. Whit ley, 884

F.2d 1152, 1160 (9th Cir. 1989)). As a result, neither Douglas

nor Peters made a fully informed decision not to present the

evidence to the jury”

Turning to a more traditional prejudice analysis, we

consider whether there is a reasonable probability that the

additional evidence that Peters should have discovered would

have altered the outcome of the penalty phase. See Strickland,

466 U.S. at 687. Evidence regarding social background and

mental health is significant, as there is a "belief, long held by

this society, that defendants who commit criminal acts that are

attributable to a disadvantaged background or to emotional and

mental problems, may be less culpable than defendants who_

have no such excuse." Boyde v. California, 494 U.S. 370, 382

4. This case also amply illustrates the need for counsel

to discover and independently evaluate the potential evidence,

as a person with a mental disorder may be reluctant to recognize

his own problems. See Bundy v. Duger, 816 F.2d 564,566-67

n.2 (Ilth Cir. 1987).

17

(1990) (internal quotation marks and emphasis omitted).

The available mitigating evidence that could have been

introduced in Douglas's trial was precisely the type of evidence

that we have found critical for a jury to consider when deciding

whether to impose a death sentence. Ainsworth v. Woodford,

268 F.3d 868> 875 (9th Cir. 2001) (holding that available

evidence would have provided the jury insight into the

defendant's troubled childhood, history of substance abuse and

mental and emotional problems). Although Peters introduced

some of Douglas's social history, he did so in a cursory manner

that was not particularly useful or compelling. See id. at 874

("While it is true that the testimony touched upon general areas

of mitigation, counsel's cursory examination of the witnesses

failed to adduce any substantive evidence in mitigation.").

Peters's argument that Douglas's life had created a "demon"

within him lacked force without some expert testimony to back

it up. See Caro, 165 F.3d at 1227 (holding that the jury did not

"have the benefit of expert testimony to explain the

ramifications of these experiences on [defendant's] behavior").

Although we did not find that Peters's failure to discover

Dr. Broussard impacted the outcome of the guilt phase, the

same cannot be said of the penalty phase. Even if the testimony

were not enough to negate an element of underlying offense, it

could have invoked sympathy from at least one member of the

jury at the penalty phase, particularly when considered in

connection with additional sociological history evidence

discussed above. See Hendrick, 70 F.3d at 1044 (holding that

mental health evidence could be mitigating at the penalty phase

"even though it is insufficient to establish a legal defense to

conviction in the guilt phase"). Douglas's alibi defense had

failed; the jury had obviously accepted Hernandez's testimony

and, particularly in light of the additional penalty phase

testimony introduced by the prosecution, "lingering doubt" was

not a viable option. Cf Williams, 306 F.3d at 715 (holding

18

counsel was not ineffective for failing to present mental health

evidence where lingering doubt was a viable strategy).

Accordingly, there was nothing to lose by presenting Dr.

Broussard's testimony about Douglas's mental health.

Dr. Broussard could have also presented significant

testimony regarding Douglas's performance on a variety of

psychological tests which, in Dr. Broussard's opinion, revealed

a "serious and outstanding mental illness." Even without

conducting a contemporaneous interview of Douglas, Dr.

Broussard opined during the habeas proceedings "to a

reasonable degree of scientific certainty" that the results of a

1983 or 1984 examination "would have also revealed significant

mental illness and dysfunction." Dr. Broussard could have also

provided a valuable explanation of other mitigating evidence by

explaining how the effects of the solvents and the automobile

accident may: have exacerbated Douglas's pre-existing

neurological deficit.

[9] The gruesome nature of the killing did not necessarily

mean the death penalty was unavoidable. See Smith v. Stewart,

189 F.3d 1004, 1013 (9th Cir. 1999) ("[T]he horrific nature of

the crimes involved here does not cause us to find an absence of

prejudice."); Hendricks, 70 F.3d at 1044 (holding that despite

the substantial evidence of aggravation, failure to present

mitigating evidence was prejudicial). The jury did not hear a

substantial amount of Douglas's social history and there was a

total absence of evidence regarding Douglas's mental problems.

The jury's failure to consider this compelling evidence

"undermine[s] [our] confidence in the outcome" of Douglas's

penalty phase hearing. Strickland, 466 U.S. at 694. Douglas has

thus established that Peters's deficient performance was

prejudicial and the writ should be granted with respect to

Douglas's sentence. Because of our decision on this issue, we

do not reach the additional claims affecting the penalty phase of

his trial, and consider only Douglas's remaining claims affecting

19

the guilt phase.

Il. HERNANDEZ'S TESTIMONY

A. Facts

Hernandez was initially arrested in Mexico in 1984.

Mexican officials informed the Anaheim Police Department of

the arrest, and several California officers traveled to Mexico to

bring Hernandez back. The officers informed the local Mexican

police of the murders, showed them the arrest warrant and

provided them some photographs. The Mexican officers

allowed as how they intended to question Hernandez and

borrowed a tape recorder from the Americans, but the American

officers were not invited to attend the interrogation. During the

interrogation that followed, Hernandez claims he was beaten for

fifteen or twenty minutes, but still did not talk. The police then

stopped the questioning, but informed Hernandez he could

expect worse treatment that evening. They returned later and

told Hernandez they were going to "take him out to the beach."

Hernandez construed this to mean that he would be taken to the

beach and killed. Fearing for his life, Hernandez gave a full

confession. His statement was typed and signed, and he was told

it would not be given to the California officials.

Mexican police then released Hernandez to California

authorities, giving them a copy of the statement. Hernandez was

escorted across the border and officially arrested. Before his

arraignment, he was interviewed at the police station by Deputy

District Attorney Rackacaus, who did not give Hernandez a

Miranda warning. Rackacaus told Hernandez their discussion

was “off the record," that Hernandez was in "serious trouble"

and that he wanted to know Hernandez's story to see if he could

be used as a witness against Douglas. Hernandez agreed to tell

his story, though he did not want it taped.

20

During the interview, Rackacaus did not mention the

Mexican confession. Although Hernandez says he suspected the

American police were given the statement, he did not know if

this were true. During the interview, Hernandez's counsel

arrived at the station, and although Hernandez was informed of

this fact, he indicated he would finish giving his statement

before speaking to counsel. Hernandez subsequently testified

that his statements to Rackacaus were made freely and

voluntarily. By his own account, any remaining threat of beating

disappeared once he crossed the border, testifying that he "knew

[he] wasn't going to get beat up or forced to say anything [he]

didn't want to."

A few weeks after the interview, following negotiations

between the prosecution and Hernandez's counsel, Hernandez

was granted full immunity in exchange for his testimony against

Dougias. No conditions were placed on the grant and he was not

required to testify in conformity with his earlier representations.

He was, however, informed that he could be prosecuted for

perjury if he testified untruthfully.

B. Due Process Violation ‘

Douglas contends that Hernandez's trial testimony violated

his due process rights because Hernandez's testimony was

involuntary as a direct product of the coerced Mexican

confession and because American authorities aided and abetted

the procuring of the confession and then exploited its results. In

general, Douglas does not have standing to challenge a violation

of Hernandez's rights; however, illegally obtained confessions

may be less reliable than voluntary ones, and thus using a

coerced confession at another's trial can violate due process.

See Clanton v. Cooper, 129 F.3d 1147, 1157-58 (10th Cir.

1997); United States v. Mattison, 437 F.2d 84, 85 (9th Cir.

1970). Because the confessions themselves were not introduced

at Douglas's trial, however, he must show that Hernandez's trial

21 ;

testimony was involuntary. Mattison, 437 F.2d at 85.

Douglas essentially argues that the "taint" of the beatings

in Mexico carried over to trial, relying on a number of cases in

which the government sought to introduce purportedly voluntary

confessions that followed an initial confession obtained in

violation of an accused's constitutional rights. See, e.g., United

States v. Jenkins, 938 F.2d 934,941 (9th Cir. 1991) (holding that

amount of time elapsed and "purpose and flagrancy" of

misconduct are considerations in whether taint of coerced

confession has dissipated).” The district court correctly

recognized that our decision in Mattison is more analogous, as

it actually involved a witness's live trial testimony after an

earlier involuntary confession by that witness. In Mattison, as

here, the defendant argued that the witness's trial testimony was

so tainted by the illegal confession that it rendered the trial

fundamentally unfair. 437 F.2d at 85. We disagreed, stating

that "[B]y the time of trial, the psychologically coercive

atmosphere of that interrogation must surely have dissipated.

There is no indication that [the witness] was told at any time by

anyone what he should say on the witness stand." /d. We also

noted that, in contrast to introducing an out-of-court statement,

the witness's testimony was subject to cross-examination and

5. As part of this overall claim, Douglas also argues that

the role of the United States officers in the Mexican confession

contributed to the involuntariness of Hernandez's trial

testimony. The record, however, reflects that the alleged

participation in the coerced Mexican confession appears to be

somewhat limited: the American officers showed the Mexican

officers photographs and an affidavit in support of the warrant

for Hernandez's arrest, accompanied them on a warrantless

search of Hernandez's local residence and supplied a tape

recorder to the Mexican officials upon request.

22

the jury could observe demeanor and gauge credibility and

decide what weight to afford the testimony. /d. In this case,

Hernandez himself acknowledged that the coercive nature of the

Mexican interrogation changed once he crossed the border,

where he knew he would not be beaten or told what to say. The

American authorities did not utilize the Mexican confession in

any way against Hernandez, nor was it introduced at Douglas's

trial. See id. Having negotiated complete immunity, the

prosecution had nothing to hold over Hernandez at the time he

testified. He was not told what to say at Douglas's trial, other

than to “tell the truth." He was cross-examined and the jury had

the opportunity to observe his credibility.

While true that the "purpose and flagrancy" of the

misconduct is to be considered relevant in determining whether

the taint of an involuntary confession has dissipated, it is hard

to say that the American officers' "participation" in the Mexican

confession was particularly flagrant, and it did not make it any

more likely that Hernandez's later trial testimony was

involuntary. On these facts and in line with Mattison, the district

court correctly concluded that even though the earlier

confessions were involuntary or in violation of Hernandez's

constitutional rights, his testimony at Douglas's trial was not

coerced and did not violate Douglas's due process rights.

C. Failure To Disclose Mexican Reports

In a somewhat related claim, Douglas alleges that the

prosecution failed to provide the defense with reports from

Mexican authorities concerning their interrogations of

Hernandez. Douglas claims that the reports would have

established a link between American officials and the Mexican

interrogation, and that the district court abused its discretion by

denying an evidentiary hearing on this matter. ‘

The State, on the other hand, claims that it never had the

23

interrogation tape or signed confession, and that Detective

Martinez was given only a typed report in Spanish. (Martinez

testified at the state court hearing that Mexican authorities did

not give them the tape, but gave them a typed report instead.)

The State also asserts that this was obviously turned over to the

defense, because Peters cross-examined Hernandez in detail

about his statements to the Mexican police and _ their

interrogation methods.

An evidentiary hearing is required where "the petitioner's

allegations, if proved, would establish the right to relief." Silva,

279 F.3d at 833 (internal quotation marks omitted). In this case,

Douglas has not alleged any additional facts that would be borne

out by disclosure of the tapes. He contends only generally that

the tape and reports would have shown the United States

officers' "involvement" in the Mexican interrogation. He does

not explain how the information would be materially different

from the information developed in state court. The American

officers were questioned at the pre-trial state court hearing

regarding their role in the Mexican interrogation. Douglas's

counsel also cross-examined Hernandez in front of the jury

about the Mexican confession. Even assuming the state had the

reports (which is contradicted by the record), Douglas cannot

establish that he was prejudiced by the failure to produce these

reports.

III. COMPETENCY

Douglas contends that the district court abused its

discretion by failing to hold an evidentiary hearing with respect

to his competency at the time of his trial in 1984 and that the

facts were not sufficiently developed for the court to rule on this

claim.

To be competent to stand trial, a defendant must

demonstrate an ability "to consult with his lawyer with a

24

reasonable degree of rational understanding" and a "rational as

well as factual understanding of the proceedings against him."

Godinez v. Moran, 509 U.S. 389,396 (1993) (internal quotations

and citation omitted). In order to be entitled to an evidentiary

hearing on a claim of actual incompetency, the defendant must

raise a "real and substantial" doubt as to his competency, even

if those facts were not presented to the trial court. Boag v.

Raines, 769 F.2d 1341, 1343 (9th Cir. 1985).

Douglas's incompetency claim is based principally on the

1977 evaluation by Dr. Broussard, who had determined Douglas

was not competent to stand trial in 1977, and the opinion of Dr.

Rosenberg, who examined Douglas in 1997. Both doctors

testified that they believed Douglas was also incompetent at the

time of the trial in 1984. The district court found that these

opinions did not suffice to raise a "real and substantial" doubt

as to Douglas's competence in 1984 in light of other

contemporaneous and objective indications of competence.

Specifically, Douglas's trial attorney testified that he spent

a considerable amount of time with Douglas preparing for trial

and that he had absolutely no doubt that Douglas understood the

charges against him and was able to assist in his defense. Dr.

Rogers, the psychologist who examined Douglas in 1984, was

not specifically requested to prepare a formal opinion on

competence, but verbally discussed Douglas's condition with

Peters and told him that she believed Douglas was competent.

Douglas did not exhibit any strange behavior in the courtroom,

nor did the prosecutor or trial judge express any concerns about

his competence. See Hernandez v. Yist, 930 F.2d 714, 718 (9th

Cir. 1991) (finding it significant that neither trial judge,

government counselor defense attorney questioned defendant's

competence).

Finally, perhaps the most convincing evidence of Douglas's

competence in 1984 is the clerk's transcript of the hearing on

25

Douglas's motion for substitute counsel pursuant to People v.

Marsden, 2 Cal.3d 118 (1970). Following the jury verdict at the

guilt phase, Douglas filed a declaration in support of a Marsden

hearing, complaining of various disagreements with Peters

during the trial. The trial court held a hearing and discussed the

complaints with both Peters and Douglas. Douglas was

coherent, responsive and quite articulate throughout the

proceeding. The transcript makes it quite clear that Douglas

understood the charges against him, including the significance

of the upcoming penalty phase and that he had paid close

attention throughout the guilt phase. Like the district court, we

find this transcript to be strong evidence that Douglas was

competent at the time of his trial in 1984.

The district court correctly concluded that Douglas did not

raise a "real and substantial" question about his competence to

stand trial and was not entitled to habeas relief on this claim.

CONCLUSION

[10] The district court properly denied the writ with respect

to Douglas's guilt phase claims regarding competence,

ineffective assistance of counsel, and the admission of the

Hernandez testimony. Because the failure to adequately

investigate Douglas's social history and mental health was

prejudicial during the penalty phase, we remand the case to the

district court with instructions to grant the petition for a writ of

habeas corpus unless the State within a reasonable period of

time either grants a new penalty phase trial or vacates the

sentence and imposes a lesser sentence consistent with law.

AFFIRMED IN PART; REVERSED IN PART;

PETITION GRANTED AS TO SENTENCE AND

REMANDED TO DISTRICT COURT WITH

INSTRUCTIONS.

26

APPENDIX B

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

FRED BERRE DOUGLAS CASE NO. CV91-3055 RSWL

Petitioner, ORDER DENYING PETITION

FOR WRIT OF HABEAS

V. CORPUS

ARTHUR CALDERON,

Warden of California State

Prison at San Quentin,

Respondent DEATH PENALTY .

I. INTRODUCTION

Petitioner Fred Berre Douglas tiled a petition for writ

of habeas corpus in federal court challenging his convictions in

Orange County on two counts of first degree murder and his

death sentence.

Douglas claims various constitutional errors infected

either the guilt or penalty phase of his trial. He argues that these

errors require the Court to reverse his convictions, his sentence, ~

or both.

The Court has thoroughly examined each issue raised

and finds that Douglas has not established that he is entitled to

relief on any claim in the petition. Accordingly, the Court

DENIES the petition for writ of habeas corpus.

27

Il. BACKGROUND

A. Factual Background

Douglas was convicted in 1984 of the 1982 murders

of two teenage girls -- Beth Jones and Peggy Krueger. The jury

found true the special circumstance of multiple murder. After a

penalty phase trial, Douglas was sentenced to death.

1. Guilt Phase

Richard Hernandez, who was granted immunity from

prosecution for his involvement in the murders, was the

prosecution's main witness. Hernandez had been working for

Douglas in his furniture refinishing shop since 1981. He was

paid in food, beer, lodging,and occasional spending money.

On the day of the murders Jones, Krueger, Douglas,

and Hernandez drove in Douglas's car to the desert near Indio.

The victims believed Douglas was going to pay them to pose

nude for photographs. When they arrived at the desert, Douglas

told Hernandez to lay a sheet on the ground and prepare drinks

for the four of them.

About an hour later, Douglas instructed the victims to

remove their clothing. Krueger asked if she could see the

money; Douglas showed her a $100 bill. Hernandez, at

Douglas's instruction, tied the victims' feet and then tied their

hands behind their backs. Douglas then walked to his car and

retrieved a rifle. He returned to the victims and told them

"[hJere is the camera." He then told them to make "love to each

other." For the next 10 to 15 minutes, Douglas paced back and

forth, shouting instructions to the victims. He ordered one

victim to orally copulate the other.

Douglas then cut Krueger on the neck with a razor

blade and sucked on the wound for about 10 minutes. When

Douglas stopped sucking the cut, he retrieved a beer from the

cooler and told Hernandez that the women "just couldn't go

28

back."

Douglas next instructed the victims to orally copulate

him while they remained in a kneeling position. The victims

next began to orally copulate Hernandez. When he was unable

to sustain an erection, he told Douglas that he had to urinate.

As he squatted to defecate behind a bush, Hernandez heard one

of the victims yell, [l]eave her alone." He walked back toward

the victims and saw Douglas choking Jones. He noticed that

Krueger appeared dead and that blood was spurting from her

mouth. Hernandez claimed that he tried to stop Douglas, but

that Douglas knocked him down. According to Hernandez, he

was too intoxicated from drugs and alcohol to stop Douglas.

After choking Jones, Douglas struck her in the neck with the

butt of his rifle, killing her.

Douglas and Hernandez then went to a nearby bar for

a drink. When they returned to the scene of the murders,

Douglas told Hernandez to untie the ropes and to remove

anything from the victims that could be used to identify them.

He also told Hernandez to bury the bodies. Doustlas left for an

hour while Hernandez followed his instructions. When Douglas

returned, he and Hernandez drove to Borrego Springs where

they placed the victims’ clothing in a dumpster. They then

drove back to Douglas's shop where they burned the victims'

identification.

The next day, Hernandez and Douglas were

questioned at the Garden Grove Police Department about the

disappearance of Krueger and Jones. Hernandez gave police an

alibi that Douglas had concocted a few days earlier. That

evening, Douglas and Hernandez left for Canada.

Approximately six weeks later, Douglas and Hernandez drove

to Nevada where they bought a car and traded its license plates

with those on Douglas's car. Two days later, they drove to the

murder site to check the grave.

Toward the end of 1982,Douglas and Hernandez

returned to Canada. Douglas then left, his destination unknown _

to Hernandez. While in Canada, Hernandez was questioned

29 -

several times by Canadian authorities about the disappearance -

of the victims. At one point, Hernandez declined offers of

immunity and Canadian citizenship in exchange for his

testimony.

The bodies of Krueger and Jones were discovered in

the Anza-Borrego National Park in 1983. During excavation of

the burial site, police collected human teeth, hair, barrettes, and

bones. The remains found were matched with the victims'

dental charts and X-rays.

Meanwhile, Hernandez had returned to Orange

County. After he and Douglas learned that the grave site had

been discovered and that warrants had been issued for their

arrest, they traveled to Mexico. Douglas left three weeks later.

Hernandez stayed in Mexico for approximately 10 months

before he was taken into custody by Mexican authorities who

had been told by American police detectives that he was wanted

in the United States. Before he spoke to the American officers,

Hernandez was beaten by Mexican authorities and confessed his

role in the murders. He was then turned over to the American

authorities. -

Douglas was arrested in Las Vegas, Nevada, in

February 1984. He signed a waiver of extradition and was

returned to California.

Dana Lee also testified for the prosecution. Lee had

met Douglas a month before the murders. Several days before

the murders, Douglas asked him if he knew any women who

would pose nude for photographs. Lee introduced Krueger to

Douglas and Krueger introduced Douglas to her roommate

Jones. Both women said they planned to pose for Douglas.

Terry Allmon, the victims’ roommate, testified that

after the victims returned from their initial meeting with

Douglas and Hernandez, they told her that they planned to pose

nude for money. Jones stated that if she and Krueger were not

back by noon the next day, "something was wrong." When

Jones did not return home the next day, Allmon became worried

and called Jones's mother.

30

Douglas presented an alibi defense. Henry Akers, who

had known Douglas for many years, testified that on the

morning of the murders, he spoke to Douglas between 5 and

6:30, the same time Hernandez testified that he and Douglas

were driving to the desert with the victims.

Karen Bobie, an acquaintance of Krueger's, testified

that she thought she had seen both victims at a mall one month

after the murders were committed. Although she had never

met Jones, Bobie was familiar with her picture from a missing-

persons flyer.

2. Penalty Phase

At the penalty phase, the prosecution introduced

evidence of three incidents of prior criminal activity. Julie

McGettrick and Vickie Pendleton testified about separate

incidents in 1976, when Douglas forced or frightened them into

posing for nude photographs or performing sex acts with him in

the desert. A third woman, Pamela Williams, testified that in

1977 Douglas sought her participation in a plan to make movies

involving the torture and murder of young women. Douglas

was charged with attempted murder and other crimes arising out

of this plan and, after the jury deadlocked, he pleaded nolo

contendere to solicitation to commit an assault.

In mitigation, Douglas presented testimony by his

wife, son, a friend, and a neighbor regarding his good character,

~ his nonviolent nature, and his background as an orphan.

B. Procedural Background

Douglas's convictions and sentence were upheld on

direct appeal. People v. Douglas, 50 Cal.3d 468, 268 Cal.Rptr.

126 (1990), cert. denied, 498 U.S. 1110 (1991).

Douglas filed a petition for habeas corpus in federal

court on November 16, 1992. The Court held the federal

proceeding in abeyance while Douglas exhausted several claims

31

in state court. Douglas filed an amended federal petition on

January 19, 1994. Respondent filed an answer on April 18, and

Douglas filed a traverse on June 24, 1994.

On February 8, 1996, the Court granted an evidentiary

hearing on guilt phase claims 6, 25(d), 25(e), 25(j), 25(p), 25(q),

25(r), and penalty phase claims 1(d), 1(i), 7, and 17. The

evidentiary hearing was held from February 17 to February 20,

1998. At the evidentiary hearing, witnesses were called and

exhibits were received relating to the claims subject to the

hearing.

After the hearing, the Court ordered the parties to

brief all of the claims in the petition. Douglas filed a brief on

July 28, 1998, respondent filed a brief on September 14, and

Douglas filed a reply on December 12, 1998.

III. DISCUSSION

A. Application of the Antiterrorism and

Effective Death Penalty Act of 1996 ("AEDPA")

The AEDPA was signed into law on April 24,

1996. The AEDPA does not apply to this case as the federal

habeas petition was filed before the new law was enacted.

Lindh v. Murphy 521 U.S. 320, 321 (1997). Therefore, in

ruling on the petition, the Court applies the habeas corpus law

as it existed prior to April 24, 1996.

B. Guilt Phase Claims

Claim 1 - Improper Admission of Hernandez’s

Testimony

Douglas contends that his conviction is

unconstitutional because Hernandez's testimony was

"involuntary, coerced, and should not have been admitted

because (1) it was a direct product of a coerced Mexican

32

confession, (2) the American authorities participated in the

illegal Mexican confession and exploited its results, and (3)

Hernandez's testimony resulted from the prosecutor's threats of

the death penalty." (Amended Petition for Writ of Habeas

Corpus ["Pet."] at 12.)

a. Underlying Facts

In the spring of 1984, Hernandez was arrested by

Mexican police. Detective Johnson of the Anaheim Police

Department and Investigator Martinez of the Orange County

District Attorney's Office traveled to Mexico to return

Hernandez to the United States. When they arrived in Mexico,

Johnson and Martinez informed the local police of the murders

of Krueger and Jones, showed them the affidavit for the arrest

warrant, and provided them with some photographs.

The Mexican officials decided to question Hernandez.

When they were unsuccessful in their initial inquiries, they beat

him. (Reporter's Transcript ["RT"] 76.) When Hernandez still

refused to talk, they ceased the interrogation informing him that

he could expect even worse treatment that evening. (PT 80.) As

promised, the officers returned later that evening. They told

Hernandez that they were going to "take him out to the beach"

which Hernandez took to mean that they would kill him. (RT

82-83.) Fearing for his life, Hernandez gave a full confession.

His statement was typed and signed after he was told it would

not be given to the United States authorities. (PT 84.) Neither

the signed statement nor a tape recording of the statement were_

provided to the defense.

The Mexican police released Hernandez to Johnson

and Martinez and gave them a copy of the statement. Johnson

and Martinez escorted Hernandez across the border where he

was arrested and taken to court for arraignment. Before he was

arraigned, Hernandez was returned to the police station to be

interviewed by Johnson and Deputy District Attorney Anthony

Rackauckas. (PT 89.) Rackauckas did not give Hernandez the

33

Miranda warnings. Instead, he told Hernandez that the

conversation would be "off the record" and that it could not be

used against him. Before informing him of the charges he faced

and the possible penalties, Rackauckas told Hernandez that he

was in "serious trouble." (RT 89.) Rackauckas then stated that

he wanted to hear what Hernandez knew about the crimes to see

it he could be used as a witness against Douglas. Hernandez

agreed to give a statement. During the interview, Rackauckas

did not mention the Mexican confession, nor did he inform

Hernandez that he had any knowledge of it. Hernandez

suspected, but was not sure, that the American authorities had

been given the Mexican statement. (RT 93.)

Rackauckas made no offer of leniency before the

interview, but indicated afterward that if Hernandez cooperated,

the charges against him might be reduced. (RT 138.) During

the interview, Hernandez's attorney arrived at the police station.

Rackauckas informed Hernandez of this fact but Hernandez

indicated he would finish giving his statement before speaking

with counsel. (RT 159.)

A few weeks after the interview, following

negotiations between the prosecution and his attorney,

Hernandez was given immunity in exchange for his testimony.

No conditions were placed on the grant of immunity and he was

not required to testify in conformity with his earlier

representations. However, Hernandez was told that he could be

prosecuted for perjury if he testified untruthfully.

The trial court held a hearing on the voluntariness of

Hernandez's statement to Rackauckas and concluded "beyond

a reasonable doubt to a moral certainty that the statements by

Mr. Hernandez were indeed voluntary here in the United

States." (PT 187.) However, the court excluded the Mexican

confession as involuntary.

The facts developed in state court on the issue of

whether Hernandez's trial testimony was coerced are entitled to

a statutory presumption of correctness. See 28 U.S.C. §

2254(d).

34

b. Applicable Law

In general, Douglas does not have standing to

challenge an alleged violation of Hernandez's constitutional

rights. However, "[c]onfessions wrung out of their makers may

be less reliable than voluntary confessions, so that using one

person's coerced confession at another's trial violates his rights

under the due process clause." Clanton v. Cooper, 129 F.3d

1147, 1158 (10th Cir. 1997) (quoting Buckley v. Fitzsimmons,

20 F.3d 789, 795 (7th Cir. 1994)); see also, United States v.

Mattison, 437 F.2d 84, 85 (9th Cir. 1970).

c. Discussion

To obtain relief on this claim, Douglas must establish

that Hernandez's trial testimony was coerced. Mattison, 437

F.2d at 85. In Mattison, a prosecution witness was arrested and

gave a statement to police. This statement was obtained in

violation of the witness's right against self-incrimination and

right to counsel. The witness then testified against Mattison at

trial. Mattison argued that the witness's trial testimony was so

tainted by the illegal interrogation that its admission rendered

the trial fundamentally unfair. Id. The Ninth Circuit disagreed,

noting that, "[b]y the time of trial, the psychologically coercive

atmosphere of that interrogation must have dissipated. There

is no indication that [the witness] was told at any time by

anyone what he should say on the witness stand." Id. The

Mattison court also pointed out that the witness's testimony was

subject to cross-examination and that the jury could observe his

demeanor and gauge his credibility.

This claim suffers from the same infirmities as the

claim in Mattison. As Hernandez acknowledged, the coercive

atmosphere of the Mexican police station dissipated when he

crossed the border. (RT 121.) He was not confronted with the

Mexican confession when questioned by the American

authorities. Hernandez had a lawyer negotiate the grant of

35

immunity, therefore, the prosecution had nothing to hold over

his head at trial regarding the murders. There is no evidence

that Hernandez was told what to say on the witness stand and he

did not have to testify consistently with his statement to

Rackauckas to obtain immunity. In addition, Douglas’s trial

attorney, George Peters, had the opportunity to cross-examine

Hernandez about the statements he made to the Mexican and

American authorities. (RT 2763-78.) The jury had ample

opportunity to observe his demeanor and gauge his credibility.

Finally, the jury was given the appropriate instructions as to

reasonable doubt, credibility, and immunity to aid them in

assessing the value of Hernandez's testimony. (RT 3475-84.)

Therefore, the admission of Hernandez’s testimony did not

violate due process. Claim | is DENIED.

Based on the same analysis, Guilt Claims 2, 3, and 4

are DENIED. Douglas has failed to establish that Hernandez's

in-court testimony was involuntary, no out-of-court statements

were admitted at trial, and Peters had the opportunity to cross-

examine Hernandez about the Mexican confession, his

conversations with Rackauckas, and the grant of immunity

After a full hearing on the issue, the trial court found that

Hernandez's statements to the American authorities were _

voluntary. The trial was not rendered unfair by the admission

of Hernandez's trial testimony and Douglas has failed to

establish misconduct on the part of the prosecution.

Claim 5 - Denial of Right to Testify

Douglas argues that "he was denied the right to testify

on his own behalf at the guilt and penalty phases." (Pet. at 21.)

a. Applicable Law

A defendant in a criminal case has the right to take the

witness stand and to testify in his or her own defense. Rock v.

Arkansas, 483 U.S. 44, 51-53 (1987). The right to testify is

36

personal, it may be waived only by the defendant, and the

waiver must be knowing and intelligent. United States v.

Edwards, 897 F.2d 445, 446-47 (9th Cir. 1990) (applying

United States v. Martinez, 883 F.2d 750, 760 (9th Cir. 1989),

vacated on other grounds, 928 F.2d 1470 (9th Cir. 1991)).

The ultimate decision whether to testify rests with the

defendant, however, he "is presumed to assent to his attorney’s

tactical decision not to have him testify." United States v. Pino-

Noriega, 189 F.3d 1089, 1094 (9th Cir.), cert. denied, 120 S.Ct.

453 (1999) (quoting United States v. Joelson, 7 F.3d 174, 177

(9th Cir. 1993)). The trial court need not advise the defendant

of his right to testify nor must the defendant waive the right to

testify on the record. Id. If the defendant wants to testify, "he

can reject his attorney's tactical decision by insisting on

testifying, speaking to the court, or discharging his lawyer."

Joelson, 7 F.3d at 177 (citing Martinez, 883 F.2d at 761).

"Thus, waiver of the right to testify may be inferred from the

defendant's conduct and is presumed from the defendant's

failure to testify or notify the court of his desire to do so." Id

(citing Edwards, 897 F.2d at 446).

b. Discussion

Douglas claims Peters prevented him from testifying

and that he was not aware he had the right to insist on testifying.

The state court record belies this claim. Based on the transcript

of a motion to substitute counsel held after the guilt phase, the

Court finds that Peters convinced Douglas that it was in his best

interest not to testify. Peters told the trial judge, "I thought it

would be ridiculous for Mr. Douglas, absolutely ridiculous for

Mr. Douglas to testify. And we had a lengthy conversation

about that." (3¢b) Supplemental Clerk's Transcript ["Supp CT"]

529). Peters later stated that, "Mr. Douglas could or would have

said something if I precluded him from taking the stand, and he

was in full agreement with that. And that's why he didn't

testify." (3(b) Supp CT 532.) Douglas did not dispute Peters's

37

statements at the hearing.

Based on the information contained in the state court

record, the Court finds that Douglas waived his right to testify.

It would be unfair for a petitioner to take his counsel's advice

not to testify and then invalidate the trial because he took that

advice. See Martinez, 883 F.2d at 761. Claim 5 is DENIED.

Claim 6 - Denial of Right to be Present

Douglas argues that his conviction was

unconstitutional because neither he nor Peters were present

when testimony was reread to the jury. (Pet. at 22.)

a. Underlying Facts

After the guilt phase, the jury requested that the

testimony of Kathy Phillips, Dana Lee, Henry Akers, Frank

Tieffer, and Donald Hemmer be reread. (CT 1212.) After a

conference with Peters and the prosecutor, the trial court

ordered the court reporter to read back the testimony of Lee,

Akers, Tieffer, and Hemmer. (PT 3504.)

b. Applicable Law

A defendant has a right to be present at a proceeding

"whenever his presence has a relation, reasonably substantial,

to the fullness of his opportunity to defend against the charge."

Snyder v. Massachusetts, 291 U.S. 97, 105-06 (1934). "[T]he

presence of a defendant is a condition of due process to the

extent that a fair and just hearing would be thwarted by his

absence, and to that extent only." Id. at 108. This right includes

the right to be present when testimony is read back to the jury.

Healer v. Borg, 50 F.3d 1472,1477 (9th Cir. 1995). The right

cannot be waived by trial counsel, the defendant must waive it

personally. United States v. Kupau, 781 F.2d 740, 743 (9th Cir.

1986). However, the claim is subject to the harmless error

38

analysis. In the habeas context, an error is harmless if it did not

have a "substantial and injurious effect or influence in

determining the jury's verdict." Brecht v. Abrahamson, 507

U.S. 619, 638 (1993).

c. Discussion

The Court held an evidentiary hearing on this claim.

_ Atthe hearing, Peters testified that he informed Douglas that the

jury had requested that certain testimony be read to it. Peters

informed Douglas that the "usual custom and practice in the

Orange County courthouse was for the court reporter to go in

and reread testimony without the attorneys being present."

(2/17 Evidentiary Hearing Transcript ["EH"] 169-70.) Douglas

told Peters that he did not want to be present during the

readback and Peters informed the court of that fact. (2/17 EH

170.) Therefore, Douglas waived his right to be present during

the readback.

Even assuming Douglas had not waived his right to be

present, the error was harmless. Douglas claims the error was

prejudicial because Phillips's testimony was not read to the jury

even though it had requested her testimony to be read. Phillips

testified that in 1979 she participated in a photo session at

Douglas's shop during which he photographed her in the nude

while she was bound and gagged. The next month, Douglas

asked Phillips if she wanted to make more money. Douglas told

her that "he wanted to take some more pictures of other women

and take them out in the desert and make what he -- what he

referred to as a snuff flick or movie or whatever." (RT 2062.)

Douglas then told Phillips that he wanted her to drug the girls

and to "have sex with them and .. . be really brutal" (RT 2070),

and that he "would just make a movie and it would be a lot of

bondage and sadistic-type things." (RT 2063.)

Based on the content of Phillips's testimony, the

failure to read her testimony back to the jury was harmless.

Peters recognized that Phillips's testimony was "extremely

39

harmful." (2/17 EH 172.) David Whitney, respondent's

Strickland expert, concurred stating that her testimony was very

damaging." (2/19 EH 156.) The Court agrees. The failure to

ensure that Phillips's testimony was reread did not have a

“substantial and injurious effect or influence in determining the

jury's verdict." Brecht, 507 U.S. at 638.

Based on the foregoing, Claim 6 is DENIED. The

Court also DENIES the related ineffective assistance of counsel

claim (Claim 25(j)). Douglas suffered no prejudice from

Peters's failure to ensure that one of them was present during the

readback.

Claim 7 - The Prosecution Withheld Evidence of

Promises and Inducements Made to

Hernandez

Douglas argues that the prosecution "withheld

evidence of promises and inducements made to Hernandez in

order to obtain his testimony, and misrepresented to the trial

court the state's intentions concerning the sentence of

Hernandez for drug related offenses committed while he was in

custody." (Pet. at 24.)

a. Underlying Facts

While he was in jail waiting to testify against

Douglas, Hernandez was charged with possession of marijuana

and drug paraphernalia. Peters attempted to cross-examine

Hernandez regarding the charges, but Hernandez invoked the

Fifth Amendment and refused to answer any questions

regarding the pending charges. _ Peters asked the trial court to

grant Hernandez use immunity, but Rackauckas objected stating

that he was "very, very reluctant" to give Hernandez anything

less than a jail term for the crimes. Rackauckas did not want

Hernandez to be given immunity so that Peters could question

him on a collateral issue. The trial court agreed, stating that

40

Hernandez had "an absolute right to remain silent." (RT 2802-

03.) Therefore, Peters was unable to directly question

Hernandez about the charges. ?

Two days after Douglas was sentenced to death,

Hernandez pled guilty to one count of conspiracy to possess

marijuana. He was sentenced to one year of unsupervised

probation. (4 Supp. CT 8-9.) Douglas alleges that Rackauckas

misrepresented his position and failed to disclose promises and

inducements made to Hernandez to prevent the trial court from

granting him use immunity.

b. Applicable Law

The prosecution has a duty to turn over all

exculpatory evidence to the defense. "[T]he suppression by the

prosecution of evidence favorable to an accused upon request

violates due process where the evidence is material either to

guilt or to punishment, irrespective of the good faith or bad

faith of the prosecution." Brady v. Maryland, 373 U.S. 83, 87

(1963). "When the ‘reliability of a given witness may well be

determinative of guilt or innocence,’ nondisclosure of evidence

affecting credibility falls within this general rule." Giglio v.

United States, 405 U.S. 150, 154 (1972) (quoting Napue v.

Illinois, 360 U.S. 264, 269 (1959)). However, disclosure is only

required when the evidence is materiak 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." United States v. Bagley, 473 U.S. 667, 682

(1985).

c. Discussion

Douglas has alleged no facts to support a Brady

violation. The allegation that the State misrepresented its

position regarding the disposition of Hernandez's drug charge

does not give rise to a valid claim unless Douglas could show

4]

that the prosecution promised Hernandez a_ particular

disposition in exchange for his testimony. Douglas has alleged

no facts to suggest the existence of such an undisclosed deal.

Even if Douglas established that an undisclosed deal

existed, he would not be entitled to relief. The evidence

concerning additional promises or inducements is not material.

Hernandez had already been granted immunity for his

participation in the murder of Jones and Krueger and Peters

used that fact to discredit him. The fact that Hernandez might

also have been given a deal on a relatively small drug charge is

_ insignificant in light of the fact that, by testifying, he avoided a

substantial prison term as an accessory to murder. Claim 7 is

DENIED. :

For the same reasons, the related ineffective assistance

of counsel claim (Claim 25(b)) is DENIED.

Claim 8 - Restriction of Cross-Examination

Douglas argues that the trial court improperly

restricted Peters's cross-examination of Hernandez. _ (Pet. at.

27.)

a. Underlying Facts

This claim is based on the same facts as Claim 7.

Douglas argues that the trial court should have allowed Peters

to cross-examine Hernandez regarding the drug charges pending

against him.

b. Applicable Law

A defendant in a criminal case has a "right to cross-

examine adverse witnesses to uncover possible bias and to

expose the witness's motivation in testifying." Reiger _v.

Christiansen, 789 F.2d 1425, 1433 (9th Cir. 1986). However,

the right to cross-examination is subject to the broad discretion

42

of the trial judge. Davis v. Alaska, 415 U.S. 308,316 (1974).

A denial of the right of cross-examination is subject

to aharmless error analysis. To test for harmless error the Court

is "to assume that the damaging potential of the cross-

examination would be fully realized and then to determine

whether the error was harmless in light of the importance of the

witness's testimony in the entire case, the extent of cross-

examination otherwise permitted and the overall strength of the

prosecution's case." United States v Miguel, 111 F.3d 666, 671-

72 (9th Cir. 1997) (internal quotation and citation omitted).

c. Discussion

In this instance, any restriction of cross-examination

was harmless. Although Hernardez's testimony was very

important to the prosecutions’s case, the cross-examination

permitted was extensive. Peters elicited testimony from

Hernandez that the drug charges were pending. Peters called

witnesses who testified regarding Hernandez's possession and

use of the drugs in jail, and the trial court old Peters that he

could argue to the jury that Hernandez had used drugs in jail.

(RT 3065-3110.) In addition, Hernandez testified that he had

regularly used heroin, uppers, downers, quaaludes, and

marijuana for 20 years, drank heavily, had been arrested and

convicted of robbery, and lied to police on aregular basis. (RT

2656, 2653-59.)

Douglas was able to expose the essential facts

regarding Hernandez's use of drugs in jail, the cross-

examination permitted was extensive,-and the prosecution's

overall case against Douglas was strong, therefore, any alleged

error in the restriction of cross-examinaton did not have a

“substantial and injurious effect or influence in determining the

jury's verdict." Brecht, 507 U.S. at 638. Claim 8 is DENIED.

43

Claim 9 - Denial of Motion for Change of Venue

Douglas claims the jury was exposed to prejudicial

pretrial publicity which deprived him of a fair trial. (Pet. at 28-

29.)

a. Underlying Facts

Peters made a pretrial motion for change of venue. In

support of the motion, the defense submitted 55 newspaper

articles discussing the 1977 crimes and 9 newspaper articles

discussing the 1982 murders. (9 Supp CT 2-55.) :

In considering the motion, the trial court noted that

the articles discussing the 1977 crimes were "highly

inflammatory," that the "nature and gravity of the offense is

certainly a major factor in this particular case," and that the

Status of the victim and the defendant in the community held

little weight. (Pre-Trial Transcript ["PT"] 106-07.) The trial

court denied the motion on the grounds that the news coverage

relating to the 1982 crimes was less than the coverage for the

1977 crimes and the size of the county was such that Douglas

could obtain a fair trial. (PT 108.) The trial court noted that,

despite the pervasive and inflammatory publicity in 1977,

Douglas was able to obtain a fair trial as evidenced by the

verdict in that case. (PT 106.)

b. Applicable Law

A criminal defendant has a right to be tried by a panel

of impartial, indifferent jurors. "Accordingly, atrial judge must

grant a motion for change of venue if prejudicial pretrial

publicity makes it impossible to seat an impartial jury."

Ainsworth v. Calderon, 138 F.3d 787, 795, amended, 152 F.3d

1223 (9th Cir. 1998) (internal quotation omitted). A federal

habeas court must "make an independent review of the record

to determine whether there was such a degree of prejudice

44

against the petitioner that a fair trial was impossible." Harris v.

Pulley, 885 F.2d 1354, 1360 (9th Cir. 1988) (quoting Bashor v.

Risley, 730 F.2d 1228, 1234 (9th Cir. 1984)). "A reviewing

court must independently examine the exhibits containing news

reports about the case for volume, content, and timing to

determine if they were prejudicial." Id.

The impact of pretrial publicity is tested under either

the presumed prejudice or actual prejudice standards.

"Prejudice is presumed when the record demonstrates that the

community where the trial was held was saturated with

prejudicial and inflammatory media publicity about the crime."

Ainsworth, 138 F.3d at 795 (internal quotation omitted).

Presumed prejudice is reserved for extreme situations.

Among the factors to be considered in a presumed

prejudice argument is whether there was a “barrage of

inflammatory publicity immediately prior to trial amounting to

a huge... wave of public passion." Patton v. Yount, 467 U.S.

1025, 1033 (1984) (internal quotation omitted). The Court will

also consider whether the media accounts were primarily factual

as such accounts tend to be less prejudicial than inflammatory

editorials or cartoons. See Harris, 885 F.2d at 1362. A final

factor is whether the media accounts contained inflammatory,

prejudicial information that was not admissible at trial. See

Sheppard v. Maxwell, 384 U.S. 333, 360-61 (1966).

To determine whether actual prejudice existed, the

Court "must determine if the jurors demonstrated actual

partiality or hostility that could not be laid aside." Harris, 885

F.2d at 1363.

c. Discussion

The Court independently reviewed the evidence

presented at the motion for change of venue and finds that the

publicity surrounding the trial did not rise to the level of

presumed prejudice. The lurid nature of the offenses coupled

with Douglas's previous arrest made the case newsworthy. The

45

publicity relating to the capital crimes was primarily factual, but

did contain information regarding Douglas's prior arrest that

was not admissible at trial. Orange County's population at the

time was approximately 2,000,000, and neither Douglas nor the

victims were prominent members of the community. In

addition, the number of articles published in 1984 was relatively

modest. Based on all the circumstances, the publicity was not

such that it could be said to have saturated the community.

To determine whether actual prejudice existed, the

Court "must determine if the jurors demonstrated actual

partiality or hostility that could not be laid aside." Harris, 885

F.2d at 1363. In this case, it is difficult to make that

determination with absolute certainty. Peters did not conduct

detailed voir dire on the issue of the jurors’ exposure to pretrial

publicity because he did not want to bring up Douglas's 1977-78

arrest and trial. However, the trial court did conduct some voir

dire to determine if any of the jurors knew Douglas or if his

name "[rang] a bell." (See RT 214, 223, 235, 242, 245-46, 260,

1225, 1291.) One juror was excused because she had read about

the case (RT 252-53), another was excused because she had

heard people discussing the case at a party (RT 1738-40), and

a third was excused because he heard news reports about the

case. (RT 1779-84.) |

The trial court attempted, without discussing the prior

arrest, to determine whether any of the prospective jurors had

heard anything about Douglas or about the case. Only four

prospective jurors responded that they had heard anything about

the case. The jurors who responded that they had heard about

the case and could not be impartial were excused. Therefore,

the Court must conclude from the facts before it that the

remaining jurors had no knowledge of Douglas, his crimes, or

his prior arrest and conviction. In addition, the publicity

surrounding the capital crimes was not overly inflammatory and

was factual in nature. Only two of the nine articles submitted

by the defense mentioned Douglas's prior arrest. (9 Supp CT

49,55.) The last article was published over three months before

-—«

46

voir dire began. Finally, Douglas made the strategic decision to

avoid any mention of his prior arrest and conviction. Therefore,

he cannot now complain that he was unable to adequately gauge

the effect of pretrial publicity during voir dire.

Douglas has failed to establish that the jurors

"demonstrated actual partiality or hostility that could not be laid

aside." Harris, 885 F.2d at 1363. This conclusion is supported

by the fact that Peters did not use all of his allotted peremptory

challenges and did not object to the jury as finally composed.

(RT 1826.) Therefore, he must have been satisfied with the jury

as selected. See Fetterly v. Paskett, 163 F.3d 1144, 1748 (9th

Cir. 1998).

Based on the foregoing, Claim 9 is DENIED. For the

same reasons, the Court DENIES the related ineffective

assistance of counsel claims (Guilt Claim 25 (h) and Penalty

Claim 1 (b)).

Claims 10 and 11 - Denial of Motion for

Appointment of Counsel

In two closely related claims, Douglas argues that the

trial court erred in denying his request for the appointment of

counsel to assist him in bringing a motion to relieve Peters as

his attorney and in denying the actual motion to relieve Peters.

(Pet. at 31, 35.)

a. Underlying Facts

On November 27, 1984, after the jury returned a

guilty verdict, the trial court held an in camera hearing on

Douglas's Marsden motion to relieve trial counsel.£ The court

6. People v. Marsden, 2 Cal.3d 118,84 Cal.Rptr. 156

(1970), requires a state trial court to listen to a defendant's

reasons for wanting to substitute counsel and to exercise

discretion as to whether to grant the substitution.

47

felt the motion was untimety but agreed to hear it to decide if

another attorney should be appointed at the penalty phase.

Douglas, in a declaration attached to his motion and at the

hearing, raised several areas of alleged incompetence by Peters.

Peters then responded to each issue. The trial court denied the

motion after finding that the “alleged incidences of

incompetence" were trial tactics. (RT 3517.) Douglas then

asked the court to appoint an attorney to help him with the

Marsden motion which he claimed was not finished. The judge

denied the request. (RT 3518.)

On December 4, 1984, after the penalty ila the

trial court heard Dougias's request for substitute counsel to be

appointed for the limited purpose of determining whether Peters

was incompetent or whether a conflict between Peters and

Douglas prevented Peters from providing effective assistance at

the post-trial motions. The court agreed to appoint a lawyer for

this purpose. (RT 3979.)

On-January 4, 1985, Jerry Goldfein made a special

appearance for Douglas. Goldfein stated that he thought there

were some issues of ineffective assistance that could be raised,

but he would have to review the trial record to make a final

determination. (RT 3999-4000.) Peters argued that Douglas

wanted a new trial and that ineffective assistance of counsel was

a viable basis for a motion for new trial. Peters proposed

several options to the court, including appointing an attorney to

handle only issues of ineffective assistance at the motion for

new trial and having Peters handle the remaining issues. (RT

3995-96.) The trial judge responded by stating that, after

presiding over the trial, he could not "just off the top of [his]

head, find any incompetence at all.". (PT 4002.) The judge

then denied the motion for substitute counsel. (RT 4004.)

Peters conducted the motion for new trial and did not allege his

own ineffectiveness.

=.

48

b. Applicable Law

The refusal to allow a substitution of attorney may

result in a denial of the constitutional right to counsel "if the

defendant and his attorney are embroiled in an ‘irreconcilable

conflict.’"" United States v. McClendon, 782 F.2d 785,789 (9th

Cir. 1986) (quoting Brown v. Craven, 424 F.2d 1166,11 70(9th

Cir. 1970)). In reviewing a trial court's denial of substitution,

the ultimate question the Court must answer is whether "the

conflict between [petitioner] and his attorney had become so

great that it resulted in a total lack of commiunication or other

significant impediment that resulted in turn in an attorney-client

relationship that fell short of that required by the Sixth

Amendment." Schell v. Witek, 218 F.3d 1017, 1026 (9th Cir.

2000).

c. Discussion

Claim 10 alleges that Douglas was denied the

effective assistance of counsel by the trial court's refusal to

appoint counsel to assist him in asserting his right to the

appointment of substitute counsel. Douglas has presented no

authority and the Court is aware of none for the proposition that

a defendant is entitled to an attorney to argue a motion for

substitution of counsel.

Claim 11 alleges that Douglas was deprived of due

process and the effective assistance of counsel when the trial

court denied the motion to appoint substitute counsel.

Douglas has failed to establish that the alleged

conflict in this case resulted in a total lack of communication

between he and Peters. The basis for Douglas's motion to

substitute counsel was Peters's alleged incompetence. The trial

court reviewed the motion and held a hearing on it. During the

hearing, Peters discussed each alleged claim of ineffectiveness

and Douglas was given an opportunity to respond to Peters's

explanations. (3(b) Supp CT 494-533f.) The trial court then

49

denied the motion after finding that the "alleged incidences of

incompetence" were trial tactics. (PT 3517.)

Douglas did not allege in the motion or at the hearing

that he and Peters could not communicate. In fact, Douglas told

the trial court that he and Peters "get along fine." (3(b) Supp

CT 498.) The important issue in a claim of denial of a motion

to substitute counsel is “the nature and extent of the conflict

between defendant and counsel, not [] whether counsel is

legally competent." United States v. Walker, 915 F.2d 480, 483

(9th Cir. 1990). Douglas has failed to establish the existence of

an irreconcilable conflict.

Based on the foregoing, Claims 10 and 11 are

DENIED.

Claim 12 - Conflict of Interest

Douglas claims Peters had a conflict of interest

because Peters failed to disclose "that he had worked as a

district attorney in the office which had prosecuted Petitioner in

1977-78 and was personally acquainted with the prosecutor of

Petitioner's 1977-78 case." (Pet. at 36.) Douglas claims the

conflict of interest affected Peters's performance because he did

not adequately challenge the validity of the earlier charges and

failed to effectively cross-examine penalty phase witnesses who

testified at the 1978 trial.

A criminal defendant has a right to the undivided

loyalty of his attorney. Mannhalt v. Reed, 847 F.2d 576, 579

(9th Cir. 1988). To "establish a sixth amendment violation

based on a conflict of interest the defendant must show 1) that

counsel actively represented conflicting interests, and 2) that an

actual conflict of interest adversely affected his lawyer's

performance." Id. at 579.

This claim is without merit. Douglas has set forth no

authority for the proposition that Peters's prior employment as

a deputy district attorney or his acquaintance with the attorney

who prosecuted the earlier case amounts to an actual conflict of

50

interest. Douglas has failed to show that Peters was actively

representing conflicting interests or that the alleged conflict had

an adverse impact on his representation. Claim 12 is DENIED.

Claim 13 - Failure to Present Evidence of

Hernandez's Incompetence to Testify

Douglas argues that Peters's representation was

deficient because he failed "to investigate, prepare, present

evidence and argue to the trial court that Hernandez was

incompetent to testify at trial." (Pet. at 37.) Douglas argues

that Peters should have investigated Hernandez’s competence

to testify because he was a confessed heroin addict and was

awaiting trial on drug charges.

Douglas has not established that Hernandez was

incompetent to testify. Based on the Court's review of the state

court record, Hernandez was able to clearly recall and narrate

the facts of the case. There is no indication from the record that

his speech or demeanor suggested that he was under the

influence of drugs or alcohol. Neither the trial court, the

prosecutor, nor defense counsel raised the issue of Hernandez's

competence to testify. Douglas has failed to establish that any

reasonable attorney would have investigated Hernandez's

competence to testify and has failed to establish prejudice as a

result of the alleged omission. Claim 13 is DENIED.

For the same reasons, the Court DENIES the related

ineffective assistance of counsel claim (Claim 25(n)).

Claims 14 and 15 - Failure to Preserve

Exculpatory Evidence and Failure to Impose

Sanctions

In two related claims, Douglas argues that the

Anaheim Police Department failed to preserve and timely

disclose exculpatory evidence and that the trial court failed to

grant a motion to dismiss and or impose a sanction for loss of

51

evidence. (Pet. at 39, 42.)

| a. Underlying Facts

Detective David Grace of the Anaheim Police

Department was working in the missing persons department

trying to locate Krueger and Jones. (RT 1834-35.) He was also

working on between 30 and 40 other missing persons cases per

month. (RT 1864.) Grace's missing persons files were not

turned over to the defense until the time of trial. At trial, the

defense filed a motion to dismiss the case or for sanctions for

the police department's failure to preserve exculpatory evidence.

Grace testified at a hearing on the defense motion to

dismiss that he received a call from Jones's mother who told

him that a man named George Beckett called her from a pay

phone at a truck stop In El Paso, Texas, and said he saw one of

the victims at the truck stop. (RT 1838-39.) Grace testified that

he tried the phone number given to him by Mrs. Jones

approximately five times but no one answered. (RT 1881.)

Grace also received a phone call from a Sandy Maren

who said she saw one of the victims at a nightclub in Orange

County. (RT 1850-51.) He took her name and phone number

and told her to call him back if she ever saw the girl again.

Maren never called back and Grace never tried to contact her.

Douglas claims that, by the time he got the missing

persons file, he could not locate Beckett and the phone number

given by Maren had been disconnected. He contends that the

prosecution's failure to follow up on this evidence and failure

turn over the missing persons file in a timely manner deprived

him of material exculpatory evidence.

b. Applicable Law

Failure to preserve potentially exculpatory evidence

does not constitute a denial of due process unless a defendant

can show bad faith. Arizona v. Youngblood, 488 U.S. 51, 57-

52

59 (1988). In this case, the police preserved the evidence they

had. This claim is more appropriately phrased as a failure to

investigate potentially exculpatory evidence. "A failure to

collect potentially exculpatory evidence_can constitute a

violation of the due process clause only if bad faith is shown."

United States v. Garcia, 37 F.3d 1359, 1366 (9th Cir. 1994)

c. Discussion

Douglas has failed to establish bad faith on the part of

the Anaheim Police Department. Therefore, Douglas has failed

to establish that he is entitled to relief on the claim that the State

failed to collect exculpatory evidence and the trial court did not

err in failing to sanction the prosecution. Claims 14 and 15 are

DENIED.

Claim 16 - Trial Court Improperly Excluded

Exculpatory Evidence

Douglas contends that the trial erred when it "barred

probative material evidence that someone named ‘Doug’ (other

than Petitioner) called the police with information concerning

the whereabouts of Beth Jones and Margaret Krueger." (Pet. at

43.)

a. Underlying Facts

At trial, Douglas wanted to introduce the testimony of

Don Hemmer, Krueger's boyfriend, that he received a telephone

call from someone who identified himself as "Doug," asked

about Krueger, and intimated that she had gone to Arizona. (RT

2998.) The trial court refused to admit the evidence on hearsay

grounds. (RT 3059.) Douglas argues that the evidence was not

being offered for the truth of the matter asserted, but instead

was offered to demonstrate that someone was "passing himself

off as ‘Doug’ and expressing an interest in the two women who

—— ouinee ee gy Le Mince ie

53

had disappeared." _— (Pet. at 44.)

b. Applicable Law

This is an issue of the application of state evidentiary

law. A federal court cannot consider a claim of violation or

erroneous application of state law. Estelle v. McGuire, 502

U.S. 62, 67 (1991). A federal court may grant habeas relief on

a state law claim in those rare instances where the violation of

state law amounts to a due process violation. Pulley v. Harris,

465 U.S. 37, 41 (1984). Thus, the Court must determine

whether the trial court’s evidentiary ruling "so fatally infected

the proceedings as to render them fundamentally unfair."

Jammal v. Van de Kamp, 926 F.2d 918,919 (9th Cir. 1991).

c. Discussion

The evidence Douglas contends should have been

intr. duced was only marginally relevant and not persuasive. In

addition, the California Supreme Court held that the evidence

was inadmissible hearsay. Douglas, 50 Cal.3d at 514. In

federal court, Douglas merely argues that the evidence was

admissible under state law and that the trial court erred in

excluding it. He has failed to allege any facts to support the

argument that the trial court's refusal to admit the evidence at

issue rendered the triai fundamentally unfair. Therefore, Claim

16 is DENIED.

For the same reasons, Penalty Claim 3 is also

DENIED. The trial court's refusal to admit the evidence in

question did not render the penalty trial fundamentally unfair.

Claim 17 - Erroneous "Malice" and Second

Degree Murder Instructions

Douglas argues that the trial court gave an erroneous

jury instruction on the "malice" element of the charge of murder

54

and on second degree murder. (Pet. at 45.)

a. Underlying Facts

During guilt phase deliberations, the jury requested

copies of the instructions regarding first and second degree

murder and the special circumstance of multiple murder. The

parties agreed that the court should provide the jury with the

requested instructions. The trial court granted the jury's request

and admonished the jury that it was not to consider portions of

the instructions that had been deleted and that it was to follow

all handwritten directions noted by the court in the margins.

(RT 3505-06.) The jury was given a copy of a California Jury

Instruction - Criminal ("CALJIC") on malice (No. 8.11) that

contained substantial deletions and annotations.” |

The jury was also provided with a written version of

the second degree murder instruction that differed from the

instruction read by the court. The written version of CALJIC

8.31 contained various interlineations, however, the trial court

7. The instruction given to the jury provided as follows:

"Malice" may be either express or implied.

[Malice is express when there is manifested an

intention unlawfully to kill a humar being. |

[Malice is implied [when the killing results from

an intentional act involving a high degree of

probability that it will result in death, which act

is done for a base, antisocial purpose and with a

wanton disregard for human life][or] [when the

killing results from an intentional act, the natural

consequences of which are dangerous to life,

which act was deliberately performed by a

person who knows that his conduct endangers

the life of another and who acts with conscious

disregard for life.] (CT 1272.)

55

read the crossed-out portion of the instruction to the jury,

then informed it not to consider that portion. The written

version of the instructions stated:

Murder of the second degree is [also] the

unlawful killing of a human being as the direct causal

result of an intentional act,(involving a high degree of

probability that it will result in death, which act is

done for a base, antisocial purpose and with wanton

disregard for human life.] [or] [the natural

consequences of which are dangerous to life, which

act was deliberately performed by person who knows

that his conduct endangers the life of another and who

acts with conscious disregard for human life. ]

(CT 1277.)

The California Supreme Court found no error in

providing the 1979 written version of the second degree murder

instruction to the jury while the 1983 version was read by the

trial judge in open court. The state court held that both versions

of the instruction conveyed to the jury its obligation to find that

Douglas had subjective knowledge of the risk involved in his

conduct. Douglas, 50 Cal.3d at 514-16.

b. Applicable Law

The Court will not review this claim to determine if

the jury instruction was proper under state law. A faulty jury

instruction compels the issuance of a writ only where "‘the

ailing instruction so infected the entire trial that the resulting

conviction violates due process.’" McGuire, 502 U.S. at 72

(quoting Cupp v. Naughton, 414 U.S. 141, 147 (1973)). It is

not enough that the instruction is "undesirable, erroneous, or

even universally condemned" to warrant habeas relief the

instruction must have violated some constitutional right.

)

Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974) (quotation

omitted). Whether the instruction violated due process depends

"upon the evidence in the case and the overall instructions given

to the jury." Duckett v._ Godinez, 67 F.3d 734, 745 (9th Cir.

1995).

Douglas failed to object to the instruction at issue. In

this circumstance, federal courts in direct appeal cases have

reviewed the alleged instructional error for plain error. See,

e.g., United States v. English, 92 F.3d 909, 914 (9th Cir. 1996).

Plain error is an actual error that is clear and obvious under

current law. United States v. Olano, 507 U.S. 725, 734 (1993).

When plain error affects "substantial rights" the court has the

authority to exercise its discretion to reverse a conviction. Id.

at 734-35. A plain error affects substantial rights when the error

was prejudicial in that it "affected the outcome of the [trial

court] proceedings." Id. at 731. "It is the defendant rather than

the Government who bears the burden of persuasion with

respect to prejudice." Id. Finally, the discretion to correct the

error should be employed only in those cases "‘in which a

miscarriage of justice would otherwise result.’" Id. at 736

(quoting United States v. Young, 470 U.S. i, 15 (1985)).

Although plain error is a direct appeal standard, "[T]he burden

of demonstrating that an erroneous instruction was so

prejudicial that it will support a collateral attack on the

constitutional validity of a state court's judgment is even greater

than the showing required to establish plain error on direct

appeal." Henderson v. Kibbe, 431 U.S. 145, 154 (1977).

Therefore, if Douglas is unable to establish plain error, he will

not be entitled to habeas relief.

c. Discussion

The trial court granted the jury's request and provided

copies of the instructions relating to first and second degree

murder. Neither the defense nor the prosecution objected to the

instructions given to the jury. The malice instruction read to the

57

jury was identical to the written malice instruction provided to

the jury. (Compare RT 3486, CT 1272.) The jury was

instructed not to consider the portion of the instruction that was

crossed-out. Jurors are presumed to follow instructions. United

States v. Span, 75 F.3d 1383, 1390 (9th Cir. 1996). Therefore,

there was no plain error as a result of the trial court's handling

of CALJIC 8.11. ;

Although it appears that the trial court erred in reading

the crossed-out portions of CALJIC 8.31, Douglas has failed

to show plain error. The California Supreme Court held that

because both the oral and written instructions required the jury

to find that Douglas had subjective knowledge of the risk

involved in his conduct, "the jury was not misled when the court

read the entire version of CALJIC No. 8.31 even though the

jury was thereafter provided with only the first half of CALJIC

No. 8.11 during its deliberations." Douglas, 509 Cal.3d at 516.

The Court agrees with the California Supreme Court’s holding.

Based on the foregoing, Douglas has failed to

establish plain error as a result of the trial court's actions

regarding the malice and second degree murder instructions.

Claim 17 is DENIED.

Claim 18 - Erroneous Special Circumstance

Instruction

In a related claim, Douglas argues that the trial court

erred in giving the jury confusing and misleading special

circumstance instructions. (Pet. at 47-48.)

a. Underlying Facts

Douglas argues that the special circumstance

instructions were confusing because the trial court had struck

paragraphs four through six of one multiple-murder special

circumstance instruction (CALJIC No. 8.80), and had written

notes in the instruction's side margins. Douglas contends the

58

trial court erred by allowing the jury to see the portions of the

instruction that had been rejected after failing to provide a

proper admonition to the jury that it should not engage in

speculation on why the changes had been made.

b. Applicable Law

The applicable law is set forth in the discussion of

Claim 17.

c. Discussion

The trial court granted the jury's request and provided

copies of the instructions relating to the special circumstance

allegations. Douglas did not object to the instructions given_to

the jury. The jury was instructed not to consider the crossed-out

portion of the instruction. Jurors are presumed to follow

instructions. Span, 75 F.3d at 1390. There was no plain error

and Claim 18 is DENIED.

Claims 19 and 20 - Improper Admission of

Phillips's Testimony

In Claim 19, Douglas argues that the trial court

"improperly admitted the irrelevant testimony of Kathy Phillips

concerning Petitioner’s ‘bad character.’" (Pet. at 49.) In Claim

20, Douglas argues that the admission of Phillips's testimony

resulted in a denial of due process because the prejudicial

impact far outweighed its probative value. (Pet. at 51.)

Phillips testified at trial that three years before the she

posed nude for Douglas. She was bound and gagged during

session, and Douglas instructed her to look scared. A month

Douglas asked her to help him make "snuff" films in which he

film the torture and murder of young women. (RT 2062.)

This claim raises an issue of the application of state

law. A federal court cannot consider a claim of violation or

———e

59

erroneous application of state law. McGuire, 502 U.S. at 67.

A federal court may grant habeas relief on a state law claim in

those rare instances where the violation of state law amounts to

a due process violation. Harris, 465 U.S. at 41. Thus, the Court

must determine "whether the admission of the evidence so

fatally infected the proceedings as to render them fundamentally

unfair." Jammal, 926 F.2d at 919. -

The admission of Phillips's testimony did not render

the trial fundamentally unfair. The California Supreme Court

held that the evidence was admissible under state law. Douglas,

50 Cal.3d at 510. Douglas argues that the state court's holding

was erroneous. However, "federal habeas relief is not available

for attacks on violations of state law or procedure and is

unavailable for alleged error in the interpretation or application

of state law." Fuller v. Roe, 182 F.3d 699, 703 (9th Cir. 1999),

Claims 19 and 20 are DENIED.

Claim 21 - Trial Court Improperly Excused Tw

Prospective Jurors

Douglas argues that the trial court erred in excusing

two prospective jurors who expressed "conscientious

opposition" to the death penalty but whose views would not

have prevented or substantially impaired their duties as jurors.

(Pet. at 52.)

a. Underlying Facts

Potential juror Michael Gonzales was asked during

voir dire whether he would vote for a verdict less than first

degree murder in the guilt phase to avoid the penalty phase.

Gonzales responded, "I would, Your Honor, because I do not

believe in the death penalty." (RT 893.) Peters then explained

California's death penalty scheme to Gonzales and asked him if

he could foresee a set of circumstances under which he would

vote for the death penalty. Gonzales responded, "I don’t think

60

so. I don’t believe in the death penalty." (RT 897.)

During questioning by Rackauckas, Gonzales

equivocated somewhat and stated, "I am almost sure. Let me

put it that way. I am possibly sure that I would not vote for the

death penalty." (RT 898.) Rackauckas remarked on Gonzales's

equivocation and asked him, "is there any case where you

would ever vote for the death penalty as opposed to life without

parole?" Gonzales answered, "No, I wouldn’t vote for the death

penalty in any case." (RT 899.)

Potential juror Marilyn Zumwalt was also questioned

regarding her views on the death penalty. She responded that

she would vote for a verdict less than first degree murder at the

guilt phase to avoid a penalty phase. (RT 350.) Under

questioning by Rackauckas, Zumwalt stated that she would not

vote for death "regardless of the evidence." (RT 352.)

Rackauckas moved to excuse her for cause. After a defense

objection, the trial court asked Zumwalt, "In your opinion, Mrs.

Zumwalt, there is no case, no matter how heinous the crime

may be, and no matter how guilty the party may be, you would

never vote for the death penalty." Zumwalt responded that she

would never vote for the death penalty. The trial court then

excused her for cause without giving Peters an opportunity to

rehabilitate her answers. (RT 352.)

b. Applicable Law

A juror may be excused if the juror's capital

punishment views would "‘prevent or substantially impair the

performance of his duties as a juror in accordance with his

instructions and his oath."" Wainwright v. Witt, 469 U.S. 412,

424 (1985) (quoting Adams v. Texas, 448 U.S. 38, 45 (1980)).

The "Constitution does not prohibit the removal for cause,

prior to the guilt phase of a bifurcated trial, of prospective jurors

whose opposition to the death penalty is so strong it would

prevent or substantially impair the performance of their duties

as jurors at the sentencing phase of the trial." Lockhart v.

61

McCree, 476 U.S.162 (1985).

c. Discussion

Jurors Zumwalt and Gonzales clearly stated that their

views on capital punishment would prevent the performance of

their duties. They were thus properly excused for cause. Claim

21 is DENIED.

Claim 22 - Lack of Territorial Jurisdiction

Douglas argues that the "Superior Court of Orange

County lacked territorial jurisdiction over [his] case, and [he]

was therefore denied his right to a jury from a representative

cross section of the community in which the alleged crime

occurred." (Pet. at 54.)

a. Underlying Facts |

The murders occurred in the Anza-Borrego State Park

in San Diego County. Douglas and Hernandez were initially

charged in Orange County with conspiracy to commit murder,

murder, and conspiracy to engage in prostitution. The

conspiracy charges were dismissed against Douglas and

Hernandez after Hernandez was granted immunity. Douglas

then moved to dismiss the case for lack of jurisdiction. The

municipal court held that it had territorial jurisdiction to hear

Douglas's case because, pursuant to California Penal Code §

781,© "preliminary arrangements, which led to the commission

8. Penal Code § 781 provides, in relevant part:

When a public offense is committed in

part in one jurisdictional territory and in part in

another, or the acts or effects thereof

constituting or requisite to the consummation of

62 “

of the offense, were held in Orange County." (CT 660.) The

superior court also ruled that it had jurisdiction over the case,

notwithstanding the dismissal of the conspiracy charges.

b. Applicable Law

Whether Douglas was tried in the appropriate county

is a question of the application of state law. A federal court

cannot consider a claim of violation or erroneous application of

state law. McGuire, 502 U.S. at 67. However, a federal court

may grant habeas relief on a state law claim in those rare

instances where the violation of state law amounts to a due

process violation. Harris, 465 U.S. at 41.

c. Discussion

The fact that_Douglas was tried in Orange County

rather than San Diego County did not render the trial

fundamentally unfair. Douglas, Hernandez, Jones, and Krueger

all lived in Orange County. Douglas met the victims in Orange

County and picked them up at a 7-Eleven in Orange County

before taking them to the desert in San Diego County. (RT

2381-82.) After the murders, which were committed in San

Diego County, Douglas and Hernandez returned to Orange

County where they destroyed evidence of the crimes. (RT

2564-66.) The California Supreme Court held that "the

preliminary arrangements made by the defendant in Orange

County Were sufficient to confer territorial jurisdiction on the

Orange County courts." Douglas, 50 Cal.3d at 494. This Court

will not second-guess the California Supreme Court in the

the offense occur in two or more jurisdictional

~ territories, the jurisdiction of such offense is in

any competent court within either jurisdictional

territory.

2 63

application of state law and Douglas has failed to establish that

he was denied a fair trial because he was tried in Orange rather

than San Diego County. Claim 22 is DENIED.

Claim 23 - Prosecutorial Misconduct in the

Guilt Phase :

Douglas contends that his conviction was

unconstitutional as a result of several instances of prosecutorial

misconduct. The 28 subclaims are addressed individually

below.

a. Claim 23(a)- Failure to Disclose the

Reports of the Mexican and Canadian

Authorities

Douglas claims the prosecution did not turn over

reports and statements obtained from Canadian and Mexican

law enforcement relating to Hernandez, including the audiotape

of a statement he made to Mexican police. (Pet. at 56.)

Douglas contends that the prosecution had in its

possession and failed to disclose reports from Canadian and

Mexican law enforcement officials regarding their contacts with

Hernandez. He argues that the Canadian police reports

contained crucial impeachment of Hernandez and that the

Mexican police reports would have established a link between

American officials and the Mexican interrogation of Hernandez.

However, Douglas did not submit the reports which he contends

should have been disclosed in support of his claim and failed to

allege what information was contained in those reports.

The prosecution has a duty to turn over all

exculpatory evidence to the defense. Brady, 373 U.S. at 87.

This duty extends to information which is relevant to the

credibility of a witness. Gigiio, 405 U.S. at 154. However,

disclosure is only required when the evidence is material.

Evidence is material if "there is a reasonable probability that,

64

had the evidence been disclosed to the defense, the result of the

proceeding would have been different." Bagley, 473 U.S. at

682.

Douglas has failed to establish that the evidence he

contends should have been turned over was material. He has

provided no evidence regarding the content of the foreign police

reports. Based on the information developed in the state court,

it appears that Hernandez's statement to the Mexican police was

simply a less-detailed version of the statement he provided to

American authorities. (See RT 91.) Therefore, it is.unclear

how the Mexican documents could have helped Douglas. In

addition, Peters cross-examined Hernandez regarding the

statements he made in Mexico and his contacts with Canadian

law enforcement. (RT 2756-57; 2767-78.) In sum, Douglas

has failed to establish that, had the Canadian and Mexican

police reports been disclosed to the defense, there is a

reasonable probability that the result of the guilt phase would

have been different. Claim 23(a) is DENIED.

For the same reasons, the related ineffective assistance

of counsel claim (Claim 25(a)) is DENIED. Douglas has failed

to establish prejudice as a result of trial counsel's alleged errors.

b. Claim 23 b - The Prosecution Withheld

Evidence of Promises and Inducements Made to

Kathy Phillips

Phillips testified at trial that three years before the

murders she posed nude for Douglas. She was bound and

gagged during the photo session and Douglas instructed her to

look scared. A month later, Douglas asked her to help him

make "snuff" films in which he would film the torture and

murder of young women. (RT 2062-64.)

Douglas claims Phillips was given promises or

inducements in return for her testimony which were not

disclosed to the defense. She testified that she had been

sentenced to four years in prison for burglary: she served two

65

and a half years and was released on parole. (RT 2074.)

Douglas points to the fact that Phillips was paroled tour days

before she testified at the preliminary hearing as evidence that

a deal existed between Phillips and the prosecution.

Douglas has failed to allege any facts to support his

contention. Habeas relief is not available on claims that are

“conclusory and wholly devoid of specifics." Boehme v.

Maxwell, 423 F.2d 1056, 1058 (9th Cir. 1970).

Even if the prosecution failed to disclose the existence

of a deal, the evidence is not material. Evidence of promises or

inducements could have been used to impeach Phillips.

However, Peters effectively attacked her credibility at trial.

Phillips was a heroin addict, she had engaged in prostitution,

she allowed Douglas to photograph her in the nude and was not

harmed, and she had been convicted of grand theft and burglary

twice. (RT 2075, 2088, 2095, 2072-74.) Therefore, even

assuming some kind of deal existed, there is no reasonable

probability that, had it been disclosed to the defense, the result

of the guilt phase would have been different. Claim 23(b) is

DENIED.

For the same reasons, the related ineffective assistance

of counsel claim (Claim 25(c)) is DENIED.

c. Claim 23(c) - References to Facts Not in

Evidence

Douglas argues that the prosecutor committed

misconduct at the guilt phase because he referred to the area

where the victims were found as a "gravesite" and that he used

the term "kill" instead of "snuff" when questioning Phillips. On

federal habeas review, the Court does not ask whether the

“prosecutor’s remarks were undesirable or even universally

condemned." Darden v. Wainwright, 477 U.S. 168, 181 (1986)

"The relevant question is whether the prosecutor's comments

so infected the trial with unfairness as to make the resulting

conviction a denial of due process.’" Williams v. Borg, 139

66

F.3d 737, 744 (9th Cir. 1998) (quoting Darden, 477 U.S. at

181).

Douglas argues that the prosecutor's use of the word

"gravesite" was improper because the deputy coroner referred

to the area where the bodies were found as an "animal hole."

(RT 2263.) However, the deputy coroner later testified that the

area was a gravesite. (RT 2266.) Therefore, the use of the word

"gravesite" by the prosecutor was reasonable and supported by

the evidence. In addition, the term was appropriate because

Hernandez testified that he dug the hole and buried the victims’

bodies in it. (RT 2551-57.)

During his ques**oning of Phillips regarding

Douglas’s plans to use her to help him film the torture of young

women, Rackauckas asked, "And did [Douglas] say whether the

girls or victims would be killed in the desert?" Phillips

responded, "Yes, he did." Rackauckas then asked, "What did he

say about that?" Phillips testified, "Well, he didn't -- he didn't

say that word. But he -- he said ‘snuff them,’ which I took it as

the same thing as kill." (RT 2064.)

Rackauckas committed no misconduct and did not

misrepresent Phillips's testimony. He merely asked Phillips

whether Douglas had talked about killing women on film.

Phillips responded that, although he did not use the word "kill,"

she understood Douglas’s use of the word "snuff" to mean that

he intended to kill them. 7

Based on the foregoing, Claim 23(c) is DENIED.

For the same reasons, the related ineffective assistance of

counsel claim (Claim 25(g)) is DENIED.

d. Claim 23(d)- The Prosecutor Presented False

and Misleading Testimony

Douglas claims Hernandez testified falsely at trial.

He also argues that the prosecution knew or should have known

that Hernandez’s testimony was false and that the prosecution

should have alerted the trial court or defense counsel of the

67

falsity. (Pet.at 59-60.) ;

The knowing use of false evidence by the State in a

criminal prosecution violates due process. Giglio, 405 U:S. at

153. This rule applies equally when the State, although not

soliciting perjured testimony, allows it to go uncorrected after

learning of its falsity. Id. at 153. "A conviction obtained by the

knowing use of perjured testimony must be set aside if there is

any reasonable likelihood that the false testimony could have

affected the outcome of the trial." United States v. Polizzi, 801

F.2d 1543, 1549 (9th Cir. 1986). However, "inconsistency is

not tantamount to perjury absent a showing of knowing

falsehood." United States v. F lake, 746 F.2d 535, 539 (9th Cir.

1984).

Douglas points out several areas where Hernandez's

testimony is inconsistent. (Pet. at 79-80.) These asserted

inconsistencies include whether he had been to the murder site

before the date of the murders, whether any shots were fired at

the scene of the murders, and statements relating to the timing

of various events. However, the inconsistencies in Hernandez's

testimony identified by Douglas appear to be no more than that.

Douglas has not alleged facts to support the contention that

Hernandez's testimony was false or that the prosecution knew

his testimony was false. Claim 23(d) is DENIED.

Claim 24 - Judicial Misconduct

Douglas argues that the trial court made prejudicial

comments in the presence of the Jury which violated his rights

to a fair trial. (Pet. at 61.)

a. Underlying Facts

During the testimony of Jones's mother, the

prosecutor was attempting to introduce circumstantial evidence

of Jones's death. The prosecutor was asking Jones's mother

where Jones's baby was in an attempt to show that Jones had not

68

attempted to get her baby back. Peters objected on relevancy

grounds. The trial court sustained the objection and told the

prosecutor, "Well, I think you know, counsel, by virtue of her

dental work, Beth Jones is dead." (RT 2883.)

b. Applicable Law

Douglas would be entitled to relief on this claim if the

trial court's comments "rendered the trial so fundamentally

unfair as to violate federal due process under the United States

Constitution." Duckett, 67 F.3d at 740. The standard for

reversing a verdict because of judicial misconduct is "rather

stringent." Kennedy v. Los Angeles Police Dep’t, 901 F.2d

702, 709 (9th Cir. 1989). "To sustain a claim of this kind, there

must be an ‘extremely high level of interference’ by the trial

judge which creates ‘a pervasive climate of partiality and

unfairness." Duckett, 67 F.3d at 740 (quoting United States v.

DeLuca, 692 F.2d_1277, 1282 (9th Cir. 1982))

c. Discussion

‘ Even assuming the trial court’s comment was

improper, it did not render the trial fundamentally unfair. The

jury was provided with ample evidence regarding the death of

Beth Jones, including evidence regarding dental records and

Hernandez's testimony. The trial judge also instructed the jury

not to consider any rulings he made, questions he asked, or

statements he made to influence its opinion. (RT 3492-93.)

Therefore, the judge cured any possible prejudice by instructing

the jury and, had he not made the challenged statement, the

result of the proceedings would not have been different. Claim

24 is DENIED.

Claim 25 - Ineffective Assistance of Counsel

Douglas alleges that he was denied the effective

69

assistance of counsel at the guilt phase. He raises 27 subclaims

which he contends individually and cumulatively worked to

deprive him of the effective assistance of counsel. Each

subclaim is analyzed individually below. To prevail on an

ineffective assistance of counsel claim, Douglas must satisfy

the standard set forth in Strickland v. Washington, 466 U.S. 668

(1984). Under Strickland, he must show (1) that his attorney's

performance was deficient and (2) that prejudice resulted from

the attorney's acts or omissions. Id. at 687. Deficient

performance requires a showing that counsel's representation

fell below an objective standard of reasonableness. Id. at 688.

Great deference is generally accorded the tactical decisions of

trial counsel. Prejudice requires a showing that there is a

reasonable probability that, but for trial counsel's errors, the

result of the proceeding would have been different. A

reasonable probability is defined as a probability sufficient to

undermine confidence in the outcome. Id. at 694.

a. Claim 25(d) - Failure to Investigate

Defense Witnesses

Douglas contends that Peters was deficient in failing

to interview and call a potential witness, Carl Mutter. Douglas

claims Mutter, an inmate at Orange County Jail during his trial,

would have testified that he saw one of the victims after the date

ofthe murders. Mutter's testimony would have corroborated the

testimony of another witness who testified. that she saw the

victims approximately six weeks after the date of the crimes.

Douglas also contends Peters failed to adequately interview,

investigate, and prepare defense witness Henry Akers. Akers

testified that he talked to Douglas on the telephone at a time

when Hernandez testified he and Douglas were on their way to

the desert with the victims. (RT 3014-1 5.) Akers testified that

he remembered the date and time of the phone call because he

wrote a check to a fabric store during the phone call and later

had his employee pick up the fabric. However, on rebuttal, the

_— OO EE

70

prosecution called an employee of the fabric store who testified

that Akers picked the fabric up himself and wrote the check out

at the store. (RT 3235-40.) Douglas claims that Peters did not

adequately investigate Akers's story or prepare Akers before he

testified. .

The Court held an evidentiary hearing on these

claims.

After the penalty verdicts, Peters "became aware that

Robert Carl Mutter declared under penalty of perjury that he

saw Beth Jones alive after the date of her alleged

disappearance." (Pet. Peters Direct at 3.) Peters sent his

investigators to interview Mutter. However, he did not use the

information obtained in that interview as a basis for a motion

for new trial. Peters testified that, after talking to his

investigators about Mutter, he "had absolutely no faith in Mr.

Mutter as a credible witness. But I did have the investigators

preserve his statement for some later use if somebody else

wanted to reevaluate that credibility." (2/17 EH 167.)

The Court finds that Peters was not deficient in failing

to use the information he obtained from Mutter as a basis for a

motion for new trial. When Peters learned that Mutter might

have relevant information, he interviewed Mutter. Based on the

information he obtained, Peters determined that Mutter was not

credible and made a strategic decision not to use him as the

basis for a new trial motion. "[S]trategic choices made after

thorough investigation of law and facts relevant to plausible

options are virtually unchallengeable." Strickland, 466 U.S. at

690. The Court will not second-guess Peters on the informed

strategic decision not to use Mutter's testimony.

Peters also testified regarding his investigation of

Akers. Peters read Akers's statement in the police reports,

talked to Douglas about him, interviewed him twice in person,

and talked to him several times on the phone. (2/17 EH 163.)

Peters decided to use Akers as an alibi witness because the

information Peters obtained from him was consistent with what

he told the police, he was somewhat articulate, and he was

71

“emphatic ihat his story was right." (2/17 EH 164.) Peters also

called Akers as a witness because, based on the strength of the

prosecution's case, he felt he had nothing to lose. (2/17 EH

165.)

Based on the evidence presented at the evidentiary

hearing it appears that Peters did not contact A-I Foam to

determine if he could corroborate Akers's testimony. However,

the Court's review of counsel's performance must be "highly

deferential." Strickland, 466 U.S. at 689. It would be "all too

easy for a court, examining counsel's defense after it had proved

unsuccessful, to conclude that a particular act or omission of

counsel was unreasonable." Id. In light of that presumption,

the Court cannot say that the failure to foresee that the

prosecution would obtain evidence to refute Akers's testimony

was an error so serious that counsel was not functioning as the

‘counsel’ guaranteed the defendant by the Sixth Amendment."

Id. at 687.

Based on the foregoing, the Court DENIES Claim

25(d).?

9. Douglas also argues that Peters should have

investigated Mike Lavesque, John Vasquez and Armando

Bolanos, and witnesses who would have testified that Jones was

seen at a gas station after the date of the murders. (Pet. at 68-

69.) However, Douglas neither

states how this evidence would have helped his case nor why

Péters's performance was deficient. Douglas has presented no

facts that would have led the jury to believe that he did not

commit the crimes for which he was charged. The evidence

presented provides only a very weak inference that someone

else committed the murders and would not have refuted the

evidence presented by the prosecution. "[I]neffective assistance

of counsel claims . . . must be considered in light of the strength

of the government’s case." Eggleston v. United States, 798

F.2d 377, 376 (9th Cir. 1986). Therefore, the Court DENIES

72

b. Claim 25(e) - Peters Failed to Obtain

Expert Testimony

The Court granted an evidentiary hearing on this

subclaim. Douglas abandoned it before the hearing.

(Petitioner's Memorandum of Contentions of Fact and Law at

67.) Therefore, Claim 25(e) is DENIED.

c. Claim 25(f) - Failure to Present

Exculpatory Evidence

Anaheim police reports contained information that

shell casings and expended rounds were found at the scene of

the murders. Douglas asserts that Hernandez told the police that

Douglas had fired a .22 caliber rifle at the scene, but at trial he

testified that no shots were fired. Douglas contends that Peters

should have investigated the Anaheim police reports to

determine if the shells recovered were .22 caliber, and should

have had a .22 rifle found at Douglas's shop test-fired and

compared to the shell casings and expended rounds found at the

murder scene. (Pet. at 71-72.)

It is unclear what the actions described above would

have accomplished. the presence of shell casings and expended

rounds several years after the crimes occurred does not prove or

disprove anything material in the case. The prosecution did not

allege that Douglas shot the victims. The presence of .22

caliber shell casings could only have been used to impeach

Hernandez on a collateral issue. The evidence had no other

value. That Peters did not take extraordinary steps to secure

impeachment material on a minor collateral issue cannot defeat

the presumption that his representation was reasonable. Claim

25(f) is DENIED.

these ineffective assistance subclaims.

73

d. Claim 25(i) - Failure to Object to Hearsay

Testimony

During the guilt phase, Detective Johnson testified

regarding a trip he took to the murder site with Hernandez and

Rackauckas. Johnson testified that Hernandez led them to the

murder site and pointed out where various events took place.

(RT 2906-11.) | Douglas claims Peters was deficieat because

he did not object to this testimony. (Pet. at 76.) This claim has

no merit. Peters objected to Johnson's testimony on hearsay

grounds. The trial court sustained the objection as to anything

Hernandez said during the visit to the crime scene. (RT 2907.)_

The remaining testimony was not inadmissible hearsay. No out-

of-court statements made by Hernandez during that visit were

introduced. Johnson was asked only if Hernandez showed him

where certain events took place. Peters cannot be considered

ineffective for failing to object to admissible evidence. Claim

25(i) is DENIED.

e. Claim 25 (k) - Counsel Failed to Present

Evidence That the State Destroyed Potentially

Exculpatory Evidence

Douglas claims the Anaheim police deleted the

surname of a suspect in the case from a report thereby

destroying potentially exculpatory evidence. (Pet. at 78.) In

support of this claim, Douglas refers to a page from an Anaheim

police report. (EH Ex. 19.) The report contains a statement from

Jones's brother, Ken, that he heard one of the victims mention

the name "Doug." Immediately after the word Doug, there is a

space of approximately one inch before the next word appears.

The space occurs in the middle of a sentence. Douglas asserts

that Peters was ineffective by failing introduce evidence that the

State destroyed potentially exculpatory evidence by deleting the

suspect's surname.

Douglas has failed to present evidence that the State

74

destroyed evidence and has failed to establish that the evidence

was potentially exculpatory. He does not allege what evidence -

Peters should have found or that the evidence would have made

a difference at trial. He has presented nothing to warrant relief

on this subclaim. Habeas relief is not available on claims that

are "conclusory and wholly devoid of specifics." Boehme, 423

F.2d at 1058. Claim 25(k) is DENIED.

f. Claim 25(]) - Failure to Adequately Cross-

Examine

Douglas contends that Peters failed to attack

Hernandez’s credibility by cross-examining him on certain

issues or by calling witnesses to challenge his testimony. (Pet.

at 79-80.) Each of the alleged failures to adequately cross-

examine Hernandez is analyzed separately below.

In the first instance of alleged ineffectiveness,

Douglas contends that Peters should have cross-examined

Hernandez about prior visits to the murder site. However, the

Court cannot say that Peters provided deficient performance by

failing to bring out this alleged inconsistency on a collateral

matter. Whether Hernandez had been to the murder site before

the murders or if he had only been on the road to the murder site

is not the type of information that, had it been brought out,

would have had an impact on the result of the proceeding.

In the second instance of alleged failure to contradict

Hernandez's testimony, Douglas argues that Peters should have

used a friend of Krueger’s, Joni Green, to contradict

Hernandez's testimony regarding a meeting between him,

Douglas, and Krueger at a restaurant. To impeach Hernandez

on this issue, Peters would have had to call Green as a witness

to testify that she spoke with Krueger at the same date and time

that Krueger was with Hernandez and Douglas. This was also

a collateral issue. If Peters had shown that Krueger was not at

the restaurant when Hernandez said she was, it would not have

had an impact on the result of the proceedings. It is possible

75

that either Hernandez or Green were mistaken about the exact

time or date. In fact, Hernandez testified that they went to the

restaurant at noon or 12:30 and he did not remember exactly

how much time they spent there. (RT 2681-82). It would have

been difficult to effectively cross-examine Hernandez about an

inconsistency relating to the timing of certain events when he

was unsure about the timing of those events. Therefore, Peters

was not deficient for failing to bring out this inconsistency and

no prejudice resulted from counsel's Omissions.

In the third issue, Douglas claims Peters should have

presented the testimony of Douglas's business acquaintance,

Jack Zimmerman, that he spoke with Douglas on the phone at

a time when Hernandez testified that he and Douglas were on

the road to the murder site.

At trial, in support of a motion to substitute Peters,

Douglas asserted that Peters should have called Zimmerman to

testify. Peters responded that he spoke with Zimmerman who

said that he did not have a recollection of the conversation

Douglas claims took place. Zimmerman could not testify that

he spoke with Douglas in the morning on the date of the crimes.

Peters also noted that Zimmerman was an alcoholic. (3(b) Supp

CT 506-508.) Therefore, Peters made a reasonable strategic

decision not to call Zimmerman as a witness at the guilt phase.

Based on the foregoing, Claim 25(1) is DENIED.

g- Claim 25(m) - Counsel Failed to Present

Evidence Relating to Hernandez's F amiliarity

with Firearms

Hernandez testified that, before the victims were

killed, Douglas handed him a rifle but that he did not take it

because he was afraid of guns. (RT 2420.) Douglas contends

that Peters was deficient by failing to call witnesses to testify to

Hernandez's familiarity with or use of firearms. However, he

identifies no witnesses who could have testified to Hernandez's

familiarity with guns. Therefore, he has failed to establish that

76

Peters's performance was deficient. In addition, Douglas

suffered no prejudice from the alleged deficiencies. Impeaching

Hernandez on an inconsequential issue would not have affected

the outcome of the trial. Claim 25(m) is DENIED.

h. Claim 25(0) - Counsel Failed to Cross-

examine Teri Allmon Regarding Her

Knowledge of a Potential Suspect

Douglas contends that Peters failed to present

information contained in a letter indicating that an uncle of Don

Hemmer, Krueger's boyfriend, stated in the presence of Teri

Allmon, that he "liked to cut up and rip up girts just for the hell

of it." (Pet. at 83-84.) Douglas also claims the letter indicated

that Allmon and her husband suspected that Hemmer's uncle

killed the victims.

Peters did not provide deficient -performance by

failing to cross-examine Alimon about the letter in question.

First, under California law, evidence of the guilt of a third party

is admissible only if there is "direct or circumstantial evidence

linking the third person to the actual perpetration of the crime."

People v. Hall, 41 Cal.3d 826, 833, 226 Cal.Rptr. 112 (1986).

The information contained in the letter at issue is neither direct

nor circumstantial evidence that Hemmer's uncle actually

murdered Jones and Krueger. The information is too general to

be considered "substantial evidence tending to directly connect"

Hemmer's uncle to the crime. Id. Second, Peters would have

had to overcome a hearsay objection from the prosecution. The

information contained in the letter does not appear to satisfy the

requirements to be admissible as a declaration against interest.

See California Evidence Code § 1230. The information

contained in the letter probably would have been excluded,

therefore, Peters's performance was not deficient.

Douglas also suffered no prejudice from Peters's

failure to cross-examine Allmon regarding the letter. There was

no evidence that the uncle might have committed the crimes for

77

which Douglas was convicted and the case against Douglas at

the guilt phase was very strong. Claim 25(0) is DENIED.

i. Claim 25(D)- Failure to Impeach Dana Lee's

Testimony

Douglas claims Ken Jones, Beth Jones's brother, told

Anaheim police that on August 8, 1982, he heard Krueger ask

Jones if she wanted to make some money taking nude

photographs. (See EH Ex. 19.) This conversation took place

during a trip to Hollywood and the information is consistent

with Dana Lee's testimony about a similar conversation that

took place between the victims during a ride to Hollywood.

However, Ken Jones stated that the conversation took place

three days before Lee introduced Krueger to Douglas. Douglas

claims this information casts doubt on the inference that the

victims' conversation referred to him. He contends that Peters

should have called Ken Jones as a witness.

The Court held an evidentiary hearing on this

subclaim. At the I hearing, Peters testified that he had "no

recollection of focusing on that issue or seeing the discrepancy

between the police report which states the events happened on

Sunday and the live testimony that those events happened on

Wednesday." (Resp. Peters Direct at 11.)

Douglas is not entitled to relief on this subclaim as he

has failed to establish prejudice. The prosecution established

that Douglas met the victims through Lee. and Hernandez's

testimony. Although Peters vigorously attacked Hernandez's

credibility, the jury clearly believed the substance of his

testimony -- that Douglas murdered Jones and Krueger. If

Peters had brought out the inconsistencies between Ken Jones

and Lee's statements, there is no reasonable probability that the

result of the guilt phase would have been different. Ken Jones's

testimony would have impeached Lee on a minor point that

could have been easily explained away as an innocent

misrecollection. Claim 25(p) is DENIED.

78

j. Claim 25(q) - Failure to Evaluate Medical

Condition

Douglas claims Peters failed to investigate and present

evidence that he has physical ailments which would have made

it impossible for him to perform the acts described by

Hernandez at trial. (Pet. at 86.)

Douglas abandoned this subclaim before the

evidentiary hearing. (Petitioner's Memorandum of Contentions

of Fact and Law at 67.) Claim 25(q) is DENIED.

k. Claim 25(r) - Failure to Investigate and

Present Mental State Evidence

Douglas claims Peters failed to conduct an adequate

investigation to determine whether a mental state defense was

viable. (Pet. at 87-90.) The Court held an evidentiary hearing

on this subclaim. ~

i. Applicable Law

Trial counsel has a duty to adequately investigate a

capital defendant's mental state if there is evidence to suggest

that the defendant is impaired. Bean v. Calderon, 163 F.3d

1073, 1078 (9th Cir. 1998); see also Evans v. Lewis, 855 F.2d

631, 637 (9th Cir. 1988) (counsel's failure to pursue the

possibility of establishing his client's mental- instability

constituted deficient performance), Seidel v. Merkle, 146F.3d

750, 756 (9th Cir. 1998) (trial counsel found ineffective for

failing "to conduct even a minimal investigation in order to

make an informed decision regarding the possibility" of a

mental state defense); Hendricks v. Calderon, 70 F.3d 1032,

1039 (9th Cir. 1995) (counsel has a duty "to seek out psychiatric

evaluation of a client where the grounds of a mental defense are

apparent").

79

il. Facts Presented at Evidentiary Hearing

(a) Mental heaith investigation

At the evidentiary hearing, Peters testified regarding

his guilt phase investigation into Douglas's mental state. Peters

was appointed to represent Douglas on March 8, 1984. He had

two investigators appointed to assist him: Alfredo Rasch and

Robert Hallihan. (Pet. Peters Direct at 3.) He was also assisted

by asecond attorney who concentrated on motions and research:

first, Robert App, and then Michael Geary. (Resp. Peters Direct

at 3.)

Peters recognized that a mental state defense might be

viable. (2/18 EH 16.) Therefore, he had a psychiatrist, Dr.

Kaushal Sharma, and a psychologist, Dr. Martha Rogers,

appointed to assist him. Drs. Sharma and Rogers were

instructed by Peters "to see if there was anything of a

psychological nature [he] could use. And specifically [they]

talked about, of course, competency or any other severe mental

conditions that might be useful either in defending Mr. Douglas

or mitigating what could happen to him if he got convicted."

(2/18 EH 8.) However, the mental health experts were directed

to address themselves primarily to Douglas's claims of

claustrophobia because that "was something Douglas wanted to

get [] done first, so it was a priority." (2/17 EH 175.)

To assist the experts, Peters gathered some

information from Douglas about his background. He also

obtained information about Douglas's background from the

discovery he received relating to the 1977 crimes and from

Douglas's wife. (2/18 EH 11.) Peters provided this background

material to the experts. (2/18 EH 10.)

Dr. Rogers interviewed Douglas for a total of

approximately seven hours and administered several

psychological tests, including the Minnesota Multiphasic

Personality Inventory ("MMPI"), Rorschach, psychological

social history questionnaire, Milan Clinical Miultiaxial

80

Inventory ("MCMI"), Sack's completion test, Hooper visual

organization test, and a Mooney problem checklist. (2/19 EH

99.) However, her primary objective was to address Douglas's

claustrophobia and not to conduct a comprehensive

psychological assessment. (2/19 EH 118-19.) Nevertheless, Dr.

Rogers did a "general screening to look at the possibility of

other issues" and, after the testing and clinical interview, she

found no indication of a major mental disorder. (2/19 EH 118,

108.) |

After considering the information obtained from

Peters and interviewing Douglas in person, neither Dr. Sharma

nor Dr. Rogers found evidence of psychosis or incompetency.

(2/17 EH 162-63.) Dr. Rogers suggested that further testing

could be done and Peters "wanted to do additional work both to

see if there was some possibility [Douglas's mental state]

played some role in the guilt phase and [he] certainly wanted to

see if [he] could develop something for a penalty phase." (2/18

EH 37.) However, after Douglas obtained a separate cell to

lessen the impact of his claustrophobia, he refused to cooperate

further with either Dr. Sharma or Dr. Rogers in the preparation

of a mental state defense. (2/18 EH 35-40.) Therefore, Peters

did not present a mental state defense at the guilt phase. (2/17

EH 162.) Instead, he presented an alibi defense.

(b) Evidence that could have been presented

"1 At the evidentiary hearing, Douglas presented the

testimony of Dr. Louis Broussard, Dr. James Rosenberg, Dr.

Wilfred Van Gorp, and Dr. Dale Watson on the issue of his

mental state at the time of the murders. The State presented the

testimony of Dr. Rogers in rebuttal.

Dr. Louis Broussard

Dr. Broussard, a psychologist, was retained to

evaluate Douglas in 1977. (Updated Narrative Statement of Dr.

81

Broussard ["Broussard Decl."] at § 7.) Dr. Broussard

interviewed Douglas in 1977 and administered the following

psychological tests: the Peabody Picture Test, the Bender

Visual Motor Gestalt Test, and the Rorschach Test. (Broussard

Decl. at $11.) He concluded that Douglas "was suffering from

serious and outstanding mental illness and possible organic

impairment." (Broussard Decl. at { 8.) Douglas’s "thought

processes were chaotic and lack basic organization" and "were

So impaired that he was unable to understand the reasons why

these complex events, such as the criminal charges against him,

occurred." (Broussard Decl. at § 9.) The test results and

Douglas’s background "suggested some level of pre-existing

neurological deficit that may have interacted with insults to the

brain that he suffered later in life due to chronic alcoholism, the

near constant exposure to solvents from his work and a serious

automobile accident in 1967." (Broussard Decl. at q 12.) Dr.

Broussard informed Douglas's attorney in 1977 that he did not

have the mental capacity to plan and execute the actions with

which he had been charged and was not competent to stand trial.

(Broussard Decl. at 14, 15.)

Dr. Broussard evaluated Douglas again in 1994 at the

request of his federal habeas attorneys. He noted that, in 1977,

Douglas was "dirty, grimy and unkempt," while in 1994, he was

"clear-eyed and his speech was not slurred." (Broussard Decl.

at 10, 18.) Dr. Broussard opined that the "elimination of his

‘chronic exposure to alcohol and to industrial solvents for the

past ten years most likely caused the improvement of his present

appearance and demeanor." (Broussard Decl. at { 19.) Despite

his improved appearance, Douglas "described a well organized

and elaborate delusional system." (Broussard Decl. at 420.) Dr.

Broussard considered information regarding Douglas's

background and medical history provided by his federal habeas

attorneys and concluded that Douglas "suffers from serious

mental impairments, including paranoid, delusional, and

psychotic mental states whose etiology is difficult to determine

with certainty, but most likely is the result of organic as well as

82

psychiatric disease. Mr. Douglas most likely suffers from brain

damage from chronic alcoholism and exposure to neurotoxins?"

(Broussard Decl. at | 26.)

Dr. Rosenberg

Dr. Rosenberg is a psychiatrist who was retained to

"determine whether Mr. Douglas' mental functioning and status

at the time of the offense. for which he was convicted were

impaired in any way such that he was unlikely to have the

ability to form the required mental state of deliberation and

premeditation." (Updated Narrative Statement of Dr.

Rosenberg ["Rosenberg Decl."] at § 10.) In forming his

opinion, Dr. Rosenberg reviewed reports and data from the

other mental health experts, Douglas's social history, medical

records, and military records. (Rosenberg Decl. at § 11.)

Dr. Rosenberg opined that Douglas's "extensive

history is suggestive of diffuse, temporal lobe and frontal lobe

brain damage." His opinion is based on "chronic solvent

exposure, alcoholism, and evidence of head traumas."

(Rosenberg Decl. at § 13.) Damage to the frontal or temporal

lobes "can produce a characteristic pattern that includes

impulsive behavior, paranoid delusions, hyper sexuality, poor

judgment, social disinhibitions, phobias and other anxiety

syndromes as well as more specific sexual deviations such as

sadism." (Rosenberg Decl. at § 29.) In addition, the brain

damage "may well have impaired Mr. Douglas' ability to

appreciate the criminality of his conduct, to conform his

conduct to the requirements of the law, and his ability to form

the requisite mental state for first degree murder." (Rosenberg

Decl. at § 32.)

Dr. Rosenberg also opined that Douglas "suffers from

a schizo-affective disorder, bi-polar type, and suffered from this

mental illness at the time of his trial in 1984." He concluded that

Douglas did not have the "capacity in light of this mental

illness, to form the necessary mental state for" first degree

83

murder. (Rosenberg Decl. at § 15.)

Dr. Van Gorp

Dr. Van Corp is a neuropsychologist. He was retained

to provide an opinion on Douglas’s "ability to form the mental

State required for capital murder including deliberation and

premeditation." (Updated Narrative Statement of Dr. Van Gorp

["Van Gorp Decl."] at 413.) To provide such an assessment,

Dr. Van Corp interviewed Douglas, reviewed "a substantial

quantity of medical and court records," and administered a

“comprehensive battery of neurocognitive tests." (Van Gorp

Decl. at ¥ 14.)

Dr. Van Gorp found evidence "consistent with

dysfunction of the central nervous system, especially to the

fronto-temporal area." (Van Gorp Decl. at { 15.) He opined

that Douglas "has long-standing neurocognitive dysfunction

consistent with central nervous system impairment." (Van Gorp

Decl. at] 16.) He noted that Douglas "has a clear disturbance

in his thinking including significant paranoia." (Van Gorp Decl.

at 18.) Finally, Dr. Van Gorp stated that Douglas's symptoms

"raise the possibility of a distinct personality pattern that has

been associated with a temporal lobe seizure disorder." (Van

Gorp Decl]. at J 21.)

Dr. Watson

Dr. Watson is a neuropsychologist and was retained

to evaluate Douglas and to "determine if neuropsychological

dysfunction or deficits were present and to specify the degree,

nature and effect of any such impairments." (Updated Narrative

Statement of Dr. Watson ["Watson Decl."] at § 7.)

Dr. Watson concluded that Douglas "apparently

suffers from an organic brain/psychiatric syndrome most likely

due to his chronic and long term exposure to industrial solvents

and/or multiple head injuries." In addition, Douglas "suffers

84

from serious cognitive impairments, such as memory problems

and attention/ concentration deficits." (Watson Decl. at § 9.)

Dr. Watson opined that these impairments are "relevant to

determinations of Mr. Douglas’ ability to form the requisite

mental state for first degree murder, whether these impairments

undermined Mr. Douglas' capacity to appreciate the criminality

of his conduct and to conform his conduct to the requirements

of the law, and whether he suffered extreme mental and

emotional disturbance." (Watson Decl. ¥ 9.)

Dr. Rogers

Dr. Rogers reviewed the test data compiled by Dr.

Van Gorp and compared his findings with the tests she

administered to Douglas in 1984. The results of the MMPI tests

given in 1997-98 and 1984 were consistent, and the results of

the 1997-98 MMPI test showed that "he had a lot of

psychosomatic or somatic complaints. He engaged in a good

deal of denial as apparently a personality style; he was

depressed; there were sortie signs of anxiety .... And other

measures of possible fault disruption or unusual thinking

patterns or hypomanic or changes in affect, those were largely

not significant." (2/19 EH 106.) :

Dr. Rogers also compared Douglas's 1984 Rorschach

scores with a 1997 Rorschach test. She concluded that the

results "were not consistent with a major mental disorder."

(2/19 EH 107.)

ili. Discussion

An attorney has a duty to conduct a reasonable

investigation. Ames v. Endell, 856 F.2d 1441,1444 (9th Cir.

1988). Counsel must "at a minimum, conduct a reasonable

investigation enabling him to make informed decisions about

how best to represent his client." Sanders v. Ratelle, 21 F.3d

1446, 1456 (9th Cir. 1994). The Court must find that counsel

85

either conducted a reasonable investigation or demonstrated a

strategic reason for failing to do so. Id. However, "a particular

decision not to investigate must be directly assessed for

reasonableness in all the circumstances, applying a heavy

measure of deference to counsel's judgments." Strickland, 466

US. at 691.

Peters recognized the possibility of presenting a

mental state defense and arranged for two mental health experts

to be appointed to assist him. Although it appears that Drs.

Rogers and Sharma were directed to primarily assess Douglas's

claustrophobia, they were also asked to perform "a general

screening to look at the possibility of other issues." (2/19 EH

118.) Both experts interviewed Douglas and Dr. Rogers

administered various psychological tests. Neither expert found

evidence of a major mental illness.

Although he had received nothing from his experts to

suggest that a mental state defense was viable and he himself

saw no evidence of major mental illness, Peters wanted to

pursue the issue further. Douglas, however, refused to

cooperate with the experts after he obtained their assistance for

claustrophobia. Peters attempted to dissuade Douglas, but

Douglas was "absolutely adamant that . . . there was nothing

wrong with him, that he hadn't done this crime, he wanted to

focus on the guilt phase, he wanted nothing to do with the -

psychiatric defenses of any sort." (2/17 EH 182.)

The Court finds that, in light of all the circumstances,

the failure to further investigate and present a mental state

defense at the guilt phase was not "outside the wide range of

professionally competent assistance." Strickland, 466 U.S. at

690. Peters conducted a preliminary investigation into possible

mental state defenses. (2/18 EH 14.) He retained a psychologist

and a psychiatrist to provide a general assessment of Douglas's

mental state. Neither expert found any evidence of major

mental illness. Peters was entitled to rely on this information in

deciding whether to further pursue a mental state defense. See

Moran v. Godinez, 57 F.3d 690, 699-70 (9th Cir. 1994).

86

Douglas's subsequent failure to cooperate with Peters and the

mental health experts made it difficult for Peters to conduct a

more extensive investigation into his mental state. Moreover,

Douglas insisted that he was innocent and wanted to present an

alibi defense which would have contradicted a mental state

defense. Based on these facts, the decision to present an alibi

defense and to forego further investigation of a mental state

defense at the guilt phase was reasonable.

The Court is somewhat troubled by the fact that Peters

did not consider and follow up on Dr. Broussard's conclusion

that Douglas was incompetent and suggestion that he did not

have the capacity to premeditate and deliberate in 1977. Peters

reviewed the 1977 court file and interviewed Douglas's prior

attorney, therefore, he should have been aware that Dr.

Broussard had provided an assessment of Douglas's mental

state. (2/18 EH 53.) Peters stated that he had never heard of Dr.

Broussard and that he would have been interested "in obtaining

any psychological data on Mr. Douglas in preparation for trial."

(Pet. Peters Direct at 8.)

Peters made a mistake in failing to uncover Dr.

Broussard's assessment of Douglas's mental state and in failing

to provide this information to Drs. Rogers and Sharma.

However, Douglas is not entitled to a perfect trial. See

Williams v. Calderon, 52 F.3d 1465, 1485 (9th Cir. 1995).

Peters's failure did not so undermine "the proper functioning of

the adversarial process that the trial cannot be relied on as

having produced a just result." Strickland, 466 U.S. at 686.

The investigation of mental state evidence at the guilt phase was

reasonable.

Douglas also complains that Peters failed to

investigate his background to assist the experts. While obtaining

information regarding a client's background and mental health

history is good practice, trial counsel does not have a duty at the

guilt phase "to acquire sufficient background material on which

an expert can base reliable psychiatric conclusions, independent

of any request for information from an expert." Hendricks, 70

87

F.3d at 1038. Part of the skill of an expert is to recognize what

information he needs in order to render an opinion. Id. "To

require an attorney, without interdisciplinary guidance, to

provide a psychiatric expert with all information necessary to

reach a mental health diagnosis demands that an attorney

already be possessed of the skill and knowledge of the expert."

Id. at 1039. Therefore, Peters's failure to obtain information

relating to Douglas's background did not render his

investigation into potential mental state defenses inadequate.

Douglas has also failed to establish prejudice. None

of the experts retained by Douglas provided compelling

evidence of a mental disorder which would have rendered

Douglas unable to premeditate and deliberate or which would

have substantially diminished his capacity to premeditate and

deliberate.

Dr. Rosenberg testified that Douglas's brain damage

“may well have impaired Mr. Douglas' ability to appreciate the

criminality of his conduct, to conform his conduct to the

requirements of the law, and his ability to form the requisite

mental state for first degree murder." (Rosenberg Decl. at J 32)

(emphasis added.) He also testified that Douglas did not have

the "capacity in light of this mental illness, to form the

necessary mental state for what I understand to be first degree

murder." (Rosenberg Decl. at 915.) However, Dr. Van Gorp

testified that individuals with the type of impairment exhibited

by Douglas would be able to form the intent to murder and

premeditate. (2/18 EH 83.) Dr. Van Gorp also testified that

Douglas was capable of planning and carrying out all of the

actions attributed to him by Hernandez. (2/18 EH 72-73.) Dr.

Watson

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