Petition for Writ of Certiorari — Kurtz v. Ayers
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nNoO3 23 ZAUS 122003
| Jn The
Supreme Court of the Anited States
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ROBERT M. KURTZ,
Petitioner,
V.
ROBERT AYERS, WARDEN,
Respondent.
¢
On Petition For Writ Of Certiorari
To The Court Of Appeals
For The Ninth Circuit
¢
PETITION FOR WRIT OF CERTIORARI
AND APPENDIX
VOLUME I, PAGES A1-N4
¢
WILLIAM E. GILG, ESQ.
Attorney at Law, #151991
305 San Bruno Avenue West ~
San Bruno, CA 94066
(650) 871-8647
(650) 873-3168 (fax)
Attorney for Petitioner
COCKLE LAW BRIEF PRINTING CO. (800) 225-6964
OR CALL COLLECT (402) 342-2831 -
QUESTIONS PRESENTED
A.
REGARDING GROUNDS #1 TO #3 OF THE
SECOND-AMENDED FEDERAL PETITION
. Is it a defense attorney’s prerogative to reveal to the
police or jury attorney-client communications (such
as the location of the victim’s body and his client’s
initial, since abandoned, explanation), or does the
Sixth Amendment’s guarantee of effective assis-
tance of counsel require the attorney to first obtain
a knowing and intelligent waiver from his client?
. Where an attorney has betrayed material attorney-
client secrets to the police and the jury, and thereby
actually chilled attorney-client communications by
demonstrating to the client that what he discloses is
not treated as confidential, should the Strickland
ineffective counsel standard of review apply or a
less error-tolerant standard?
B.
REGARDING GROUNDS #5 TO #8 OF THE
SECOND-AMENDED FEDERAL PETITION
. Was the Strickland prejudice standard for claims of
ineffective counsel properly applied where a district
court denied such claims by repeatedly observing
that the jury “could still have found Petitioner
guilty” even if defense counsel had performed com-
petently?
il
QUESTIONS PRESENTED - Continued
C.
REGARDING GROUNDS #1 TO #3 OF THE
SECOND-AMENDED FEDERAL PETITION
. Where a defense attorney has conceded that he
provided ineffective assistance of counsel on three
issues, and where he has declined to respond to a
Court’s request for an explanation of his conduct on
other allegations of ineffective counsel, did a district
court error in assuming trial counsel’s actions and
omissions were deliberate and awarding them stra-
tegic deference under Strickland?
. Where the four issues described above were disposi-
tive of Petitioner’s claims and squarely presented by
an application for a Certificate of Appealability un-
der 28 U.S.C. section 2253, have the lower courts
erred in denying such certification?
iii
TABLE OF CONTENTS
QUESTIONS PRESENTED.............cccccccsscssscececseees
A. REGARDING GROUNDS #1 TO #3 OF THE
SECOND-AMENDED FEDERAL PETITION ..
B. REGARDING GROUNDS #5 TO #8 OF THE
SECOND-AMENDED FEDEPAL PETITION ..
C. REGARDING GROUNDS #1 TO #3 OF THE
SECOND-AMENDED PETITION. ..............c00005.
TABLE OF AUTHORITIBS ..............ccesccsesesesssecsaseees
PRP MNe SPUN RMEEURIEN ocsccsscsvscssevsvsssescsssensvesesveseossscesens
Se MTNE MEUEEP OY oxscacnsscesensiustconsvsnsssasisnsesesvovsvasevensees
CONSTITUTIONAL PROVISIONS AND STATUTES
_ INVOLVED IN THIS CASE ue. cccccccscsscsceesseeeseseees
STATEMENT OF THE CASE .........cccccccccececcceccecececeeeee,
1. Pertinent Details Of The Crime..................
2. Petitioner’s Attorney Tells The Police
Where They Can Find Susan’s Body............
D. JURISDICTIONAL FACTS RELATED TO
QUESTIONS PRESENTED #1 AND #2............
E. JURISDICTIONAL FACTS RELATED TO
QUESTIONS PRESENTED #3....0.......cccccseeceee.
F. JURISDICTIONAL FACTS RELATED TO
QUESTIONS PRESENTED #4....0.0....0.cccccscsceee.
G. JURISDICTIONAL FACTS RELATED TO
QUESTIONS PRESENTED 45 .....0.........cceeee.
Page
REASONS FOR GRANTING THE WRIT..................... 15
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ET eT EN OT Oe Te meee 27
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CPI wicencecsecssctovens sddukdnliicialaaalediakilaliaibeuamnides 30
APPENDIX
A. NINTH CIRCUIT’S 3/18/03 ORDER DENY-
I aaa cia alee ed a a cea Al
B. DISTRICT COURT'S 9/17/02 ORDER DENY-
BE Fi PE nin: dantiesseuiuensibaliccanis miabester atin Bl
C. DISTRICT COURT'S 9/13/02 ORDER DENY-
ING APPLICATION FOR ENLARGEMENT
OF TIME RE REQUEST FOR COA................ Cl
D. DISTRICT COURT'S 8/14/02 JUDGMENT
Be GE EE cain nukesctcandgcabavecenniowumesesaionas D1
E. DISTRICT COURT'S 8/13/02 ORDER RE-
GARDING REPORT AND RECOMMENDA-
IEEE sicxccieads vehontoninetainiaddadcasadbecssencsmeinicesy aadee: El
F. MAGISTRATE JUDGE’S 8/8/01 REPORT
AND RECOMMENDATION......................00085 F1.
G. CALIFORNIA SUPREME COURT’S 7/28/99
ORDER DENYING STATE HABEAS COR-
Pe SEE deicshiinstucicdavcceacenndensnennemcmoinin Gl
iv
TABLE OF CONTENTS - Continued
TABLE OF CONTENTS - Continued
Page
CALIFORNIA SUPREME COURT’S 6/18/97
ORDER DENYING PETITION FOR RE-
VIEW RE STATE HABEAS CORPUS PETI-
TAAITT ssitiieoonvnoeeinenmialidbinainaeiaiiinnoalameadedite, H1
CALIFORNIA SUPREME COURT’S 8/30/95
ORDER DENYING PETITION FOR RE-
VIEW RE DIRECT APPEAL...............00:..c0000. I1
CALIFORNIA COURT OF APPEAL’S 5/31/95
Fer INT cctsindacesitidvenscesveisiebnbaatammuaauiali J1
NINTH CIRCUIT’S 5/14/03 DENIAL OF
PETITION FOR REHEARING AND SUG-
GESTION FOR REHEARING EN BANC ...... K1
PETITIONER'S 8/6/99 SECOND-AMENDED
FEDERAL PETITION FOR WRIT OF HA-
RE GE Si inteneiecisccissbaanuadietialiahds Ll
PETITIONER'S 4/28/97 DECLARATION IN
SUPPORT OF SECOND-AMENDED FED-
ERAL PETITION FOR WRIT OF HABEAS
CII SINE scl vesietsntisenninetonennaee M1
JERRY HAMILTON'S 4/14/97 DECLARATION
IN SUPPORT OF SECOND-AMENDED FED-
ERAL PETITION FOR WRIT OF HABEAS
CE a vingunierissgnecaniiamnninaeee Nl
PETITIONER'S 11/13/01 OBJECTIONS TO
MAGISTRATE’S JUDGE’S REPORT AND
RECOMMENDATION ............::ccccccsssssccceseees Ol
TABLE OF CONTENTS - Continued
Page
P. PETITIONER'S 9/9/02 NOTICE OF APPEAL
FROM DISTRICT COURTS JUDGMENT
DENYING SECOND-AMENDED FEDERAL
PETITION FOR WRIT OF HABEAS COR-
FATED oxnersescavevncssesuennassenenscesbeonMieueresesaanenbnasenes Pl
Q. PETITIONER'S 10/21/02 NINTH CIRCUIT
TT ES Pie Ba GR cc ceescanescssvnsesocsvsennaseontions Ql
R. PETITIONER'S 4/1/03 PETITION FOR REHEAR-
ING AND SUGGESTION FOR REHEARING EN
BANC IN NINTH CIRCUIT.................cecceeeees Rl
S. PETITIONER'S 4/15/03 CITATION TO SUPPLE-
MENTAL AUTHORITIES RE PETITION FOR
REHEARING IN NINTH CIRCUIT............... Sl
Vii
TABLE OF AUTHORITIES
Page
CASES
Barefoot v. Estelle, 463 U.S. 880, 77 L.Ed.2d 1090,
LOS S.Ct. SSBS (1GBB).............cccecccossccsccsssssecessesseccsseccee, 30
Coleman v. Thompson, 501 U:S. 722, 115 L.Ed.2d
640, 111 S.Ct. 2546 (1991)... ccccccssseceseecccceeeeeees 10
Fischer v. United States, 425 U.S. 391, 48 L.Ed.2d
hy rs, BEE Ci cecnsinssnroesenkesesesecenteceensens 15, 16, 25
Jackson v. Virginia, 443 U.S. 307, 61 L.Ed.2d 560,
I BPI Gi crticicsedeaMbaktasinccicctechsesenceaisienceess 14, 29
Maness v. Meyer, 419 U.S. 449, 42 L.Ed.2d 574, 95
ate We Ce eiicnviccsndeniiicdsctacatisncctesaacesn ee 1++26
McClure v. Thompson, 323 F.3d 1233 (9th Cir.
ERA SNe NMR CRIA 14, 20, 26, 27
Miller-El v. Cockrell, 537 U.S. 322, 154 L.Ed.2d
SSA, TFS T.CE, LOBP CIIOG) nccccccccerccsccccccveccecccseees 1, 19, 30
Morris v. Slappy, 461 U.S. 1, 75 L.Ed.2d 610, 103
Fs RI ccacacecteitenisdenitinncteemasi tt tools se 10
Nix v. Whiteside, 475 U.S. 157, 89 L.Ed.2d 123, 106
tN em AA: 16, 30
Strickland v. Washington, 466 U.S. 668, 80 L.Ed.2d
674, 104 S.Ct. 2052 (1984) ooo... 8, 14, 18, 25, 29
Upjohn v. United States, 449 U.S. 383, 66 L.Ed.2d
lp, BR Cees GOT CED vencveiscsssecnsnnncconesenntataeiaesaens 15, 16
United States v. Zolin, 491 U.S. 554, 105 L.Ed.2d
469, 109 S.Ct. 2619 (1989) ooo. ccccccccccecececeeees 15, 16, 25
viii
TABLE OF AUTHORITIES -— Continued
Page
Weatherford v. Bursey, 429 U.S. 545, 51 L.Ed.2d 30,
Se Res GE GENT Piviiceinnnictsinnanhcntantieanicctiaeneson 15, 16, 25
Wiggins v. Smith, ___ U.S. ____, ___ L.Ed.2d ___, 123
Sens SEY UII os dhs ddcticeninunisiadennendaiaanmnseuniddadeessed 18
STATUTE
es Re ee ae Oe i cikcceccbsacckeececdsvenbucccctdbdevinsecdiees 17
COUR. BOVE GS) & Gd cocorsesnecccseccnscsscssceuvened heckainneaiacaasonneniions 18
Ss FEY UF GIIEE ctsennisiriicenacesnsesekinadiniaenemenctehieeannieniemnniente 18
Se ee i iintntcinsasecmeenepinatinsammmmmenis 18
ee a ee otiacnieictnnestninceenensunieninanines 11
ee Te Ss OF ciniwtintassesiecreininenicaienccaincas a
Tae Oe I itnntenesinisnisiinntabiibiininbinate 3, 30
ee ee ls FE eiterancintvinientniniesens emnaiaeaiiaida 3
OTHER AUTHORITIES
ID isshicincsieicnnniesilcsinanibiscanenuiansteniaedatdiiaiiaaniaumaie 26
SE SION ciscsnciticischansdhisnncdkaidcnmmeneneineeiobemnennel passim
Fourteenth Amendment..................cccesceccesseseceeseeserenes SF
ST Wot ccttideisnisinsnatectiaentaentteeaeindaaenieeaail 14
ENE II SitE acces Jonstiscedidctiaeinensacniciannimacbiednembinenna 13, 15
FR IS RI Sh iicnisicnincencancmvemninennbncesessibinsenientinnidatiinn 17
ABA Ethical Consideration EC4-4 0.0.0.0... eeeeeeeeeeeees 17
ABA Model Rule of Professional Conduct (1983),
UMD TAF sischcsbdacnaidelbnntaindudenacdlananiiaidiasiaanstiaadiniilaaianbiie 17
ix
TABLE OF AUTHORITIES - Continued
Page
Jefferson’s California Evidence Benchbook (3rd Ed.
I eT cuiehinideieaendeadibtienninlidladtaiierer re 18
Lexis-Nexis (2003) California Criminal Defense
Practice, § 1.13(2)(b), p. 1-44.11..........cccccccccocsssscseoccooeee, 18
Stern, Gressman, et al., Supreme Court Practice
(7th Ed. 1993) § 4.6, pp. 176-177 ......ccccccccccccccccceccceseceee. 26
PRAYER FOR RELIEF
Petitioner requests an order reversing the Ninth
Circuit’s denial of Petitioner’s application for a Certificate
of Appealability. (See Miller-El v. Cockrell, 537 U.S. 322,
154 L.Ed.2d 931, 123 S.Ct. 1029, U.S. cert. den., 155
L.Ed.2d 194 (2003) [providing similar relief].)
OPINIONS BELOW
On May 14, 2003, the Ninth Circuit denied the Peti-
tion for Rehearing and Suggestion for Rehearing En Banc.
(App. K.)
On March 18, 2003, the Ninth Circuit affirmed the
judgment of the U.S. District Court denying a Certificate
of Appealability (“COA”) in this case. (App. A.) :
On September 17, 2002, the U.S. District Court for the
Eastern District of California, filed an order denying
Petitioner’s Request for a COA. (App. B.)
Judgment was entered in the U.S. District Court on
August 14, 2002, denying the Second-Amended Federal
Petition for Habeas Corpus and adopting the Magistrate
Judge’s Report and Recommendation. (App. D.)
The Magistrate Judge issued her Report and Recom-
mendation on August 8, 2001. (App. F.)
_ The California Supreme Court in two unpublished
decisions denied habeas petitions filed by Petitioner on
July 28, 1999 and on June 18, 1997. (App. G & App. H.)
In an unpublished Opinion dated August 30, 1995, the
California Supreme Court denied Petitioner’s direct
appeal. (App. I.)
2
In an unpublished Opinion dated May 31, 1995, the
California Court of Appeal, Fifth Appellate District, denied
Petitioner’s direct appeal. (App. J.)
and
GROUNDS FOR JURISDICTION
The Ninth Circuit denied the Petition for Rehearing
Suggestion for Rehearing En Banc on May 14, 2003.
(App. K.) This Petition for Writ of Certiorari is filed within
90 days of that Order.
Petitioner invokes the jurisdiction of this Court under
28 U.S.C. section 1254 on the grounds that his rights
under the Sixth and Fourteenth Amendments to the
effective assistance of counsel were violated.
US.
US.
CONSTITUTIONAL PROVISIONS AND
STATUTES INVOLVED IN THIS CASE
CONSTITUTION, AMENDMENT VI:
In all criminal prosecutions, the accused shall
enjoy the right to a speedy and public trial, by an
impartial jury of the State and district wherein
the crime shall have been committed, which dis-
trict shall have been previously ascertained by
law, and to be informed of the nature and cause
of the accusation; to be confronted with the wit-
nesses against him; to have compulsory process
for obtaining witnesses in his favor, and to have
the Assistance of Counsel for his defense.
CONSTITUTION, AMENDMENT XIV, Sec. 1:
All persons born or naturalized in the United
States, and subject to the jurisdiction thereof, are
citizens of the United States and of the State
wherein they reside. No State shall make or en-
force any law which shall abridge the privileges
or immunities of citizens of the United States;
;
3
nor shall any State deprive any person of life,
liberty, or property, without due process of law;
nor deny to any person within its jurisdiction the
equal protection of the laws.
28 U.S.C. SECTION 2253:
(a) In a habeas corpus proceeding or a proceed-
ing under section 2255 before a district judge, the
final order shall be subject to review, on appeal,
by the court of appeals for the circuit in which
the proceeding is held.
(b) There shall be no right of appeal from a fi-
nal order in a proceeding to test the validity of a
warrant to remove to another district or place for
commitment or trial a person charged with a
criminal offense against the United States, or to
test the validity of such person’s detention pend-
ing removal proceedings.
(c(1) Unless a circuit justice or judge issues a
certificate of appealability, an appeal may not be
taken to the court of appeals from —
(A) the final order in a habeas corpus
proceeding in which the detention com-
plained of arises out of a process issued
by a State court; or
(B) the final order in a proceeding un-
der section 2255.
(2) A certificate of appealability may issue un-
der paragraph (1) only if the applicant has made
a substantial showing of the denial of a constitu-
tional right.
(3) The certificate of appealabilty under para-
graph (1) shall indicate which specific issue or is-
sues satisfy the showing required by paragraph
(2).
4
STATEMENT OF THE CASE
1. Pertinent Details Of The Crime.
A description of the facts presented to the jury can be
found in the Magistrate Judge’s Report and Recommenda-
tion. (App. F.)
Briefly stated, the State’s theory was that Petitioner
had killed his wife, Susan, after she read Petitioner’s
“Fourth-Step” Alcohol Anonymous (“AA”) Journal. In that
journal Petitioner had, with all the frankness demanded of
him by AA’s “Twelve-Step” program, described his intrave-
nous drug use and how he had been intimate with prosti-
tutes while married to Susan.
The State’s theory was that Petitioner, a short time
after he learned that Susan had read his journal, premedi-
tated the crime to preempt her from divorcing him, taking
him to the cleaners in divorce court, estranging him from
their two-year-old son, and revealing his behavior to the
community. (App. J, p. 13 [California Court of Appeal’s
Opinion].)
The defense theory was that Susan had attacked
Petitioner, enraged by his infidelity. Petitioner testified,
admitting that he killed his wife, but explaining that it
had occurred accidentally as he attempted to restrain her
and defend himself. Susan outweighed Petitioner by 100
pounds. (RT 722, 732-733, 840-842.)
Petitioner testified that Susan attacked him while he
was occupied with installing a computer for her and that
the computer cables he had draped around his neck
became tangled amidst the two as they struggled. He said
he grabbed a cord that had looped around her neck and
held onto it until she was subdued. To his shock, when he
released his grip, he found that she was dead. The next
day, Petitioner was seen walking with a noticeable limp
and had a deep bite mark on his hand. (RT 728-730, 801-
802.)
The State argued that the circumstance of ligature
strangulation, coupled with a string of lies Petitioner told
after the crime, the concealment of the body, and a remark
Petitioner had made some months before that he some-
times thought it would be better if his wife were dead,
suggested premeditation. The prosecution ridiculed the
idea that Susan, who appeared to be non-confrontational
on the evidence before the jury, and was having a difficult
pregnancy, would assault Petitioner. (RT 900(16-21),
943(13-14), 944(8-17) [D.A.’s summation].)
The underlying pertinent facts are that on January 2,
1993, Petitioner went to an AA meeting. Petitioner’s
sponsor, Reed Harris, noticed that Petitioner was agitated
that evening. Petitioner revealed to Harris that Susan had
found his Fourth-Step notes.
On Thursday, January 7, 1993, Petitioner reported his
wife missing. Petitioner claimed his wife had left their
home at 9:30 PM that evening. Her car was found at their
business. Susan’s coat and the keys to the store were inside.
Susan’s purse, some cash, and a computer printer were
missing. The back door appeared to have been tampered
with. Police officers filed a missing persons report.
On Monday, January 11, 1993, Petitioner went out to
dinner with his mother and stepfather, Kathy and Jerry
Hamilton. During dinner, Petitioner told them that Susan
was dead. Petitioner claimed Susan committed suicide in
the garage. Petitioner arranged to turn himself in to his
attorney the following morning. Later that same evening
he told his AA sponsor, Reed Harris, about Susan’s suicide.
6
2. Petitioner’s Attorney Tells The Police Where
They Can Find Susan’s Body.
On Tuesday morn g, January 12, 1993, the police
executed a search warrai:: at Petitioner’s house. Petitioner
came home during the search and was allowed to get a
change of clothes and to leave. Petitioner went from his
house to the office of William Smith, once the District
Attorney of Fresno County, then in private practice as a
defense attorney. Smith had been retained and the ap-
pointment set for this meeting on the preceding day.
Petitioner, Smith, and Jerry Hamilton (Petitioner’s
stepfather) sat down in Smith’s office to discuss Peti-
tioner’s predicament and to prepare Petitioner for a
voluntary surrender to the authorities later that morning.
Shortly after they sat down, Smith-called Petitioner’s
house. He spoke to a detective, inquiring if anything had
been found at Petitioner’s house. The detective said no.
Smith ended the conversation, only to call back a short
time later. Again Smith asked if they had found anything
inculpatory. The detective again said no. Placing his hand
over the receiver, Smith asked, “should we tell them?”
(App. M & App. N [Declarations of Petitioner and Jerry
Hamilton].) As for what happened next, Petitioner pre-
sented to the District Court two declarations, his own and
that of his stepfather, Jerry Hamilton. Hamilton heard
Smith ask the question, but did not hear any response
from Petitioner. (App. N.) Petitioner’s declaration indicates
he did not respond. (App. M.) Both declarations make clear
that there was no advance warning or consultation on the
wisdom of disclosing the body’s location, just the question,
and a split second later, the disclosure. Smith told the
' detective to look in a particular closet in the house. (Jbid.)
At the time of the disclosure, the search team had left
7
Petitioner’s house, but for a single man whose sole remain-
ing intention was to erase Petitioner’s computer files.
Petitioner had related this information to Smith
before Smith made the calls to the house. As the volice
would later admit, they had overlooked the body in their
search of the residence. The body was secreted in a closet,
wrapped in plastic, and hidden beneath parcels. The
body’s odor was masked by air fresheners. (CT 126-127;
RT 493-498.) In proceedings before the U.S. District Court,
Respondent cited no evidence which would have supported
an inference that the police would have discovered the
body without guidance from Smith.
D. JURISDICTIONAL FACTS RELATED TO QUES-
TIONS PRESENTED #1 AND #2
The questions in this case related to the attorney-
client privilege stem from Grounds #1 to #3 of the Second-
Amended Federal Petition, which allege:
Ground #1: Petitioner’s right to effective assis-
tance of counsel under the 6th and 14th Amend-
ments and his right to due process under the 5th
Amendment were violated by trial counsel
Smith’s wanton mismanagement of information
covered by the attorney-client privilege.
Ground #2: Trial counsel’s unprofessional han-
dling of client’s confidences frustrated the forma-
tion of a meaningful attorney-client relationship
by causing Petitioner to be less than candid with
him in subsequent meetings. This violated Peti-
tioner’s 6th and 14th Amendment rights to effec-
tive assistance of counsel as crucial information
related to guilt, innocence, and punishment was
withheld from Smith and ultimately the jury.
8
Ground #3: Attorney Smith’s handling of Peti-
tioner’s privilege constituted malpractice and
gave rise to a conflict of interest which violated
Petitioner’s 6th and 14th Amendment rights to
effective counsel. (App. L.)
On August 8, 2001, the Magistrate Judge issued a
Report and Recommendation suggesting the denial of
Grounds #1 to #3 for these reasons. According to the
Magistrate Judge:
(1) Asignificant and unauthorized breach of the
attorney-client privilege by a defense attorney is
not “prima facie evidence of unreasonable or in-
competent assistance of counsel” (App. F, p. 13(7-
11).)
(2) The operative question under Strickland
was whether trial counsel’s decision to betray his
client’s confidence was “reasonable and compe-
tent behavior” and, if not, whether there was a
reasonable probability that the error affected the
outcome of the case. (/d., at pp. 13(12-15), 17(19-
20).)
(3) The disclosure of the location of Susan’s
body by Petitioner’s attorney came before the ini-
tiation of adversarial judicial proceedings and
therefore does not implicate the 6th Amendment.
(Id., at p. 17(6-18).)
(4) Even if trial counsel did not consult with Pe-
titioner on the subject, and obtain a knowing and
intelligent waiver, he did give Petitioner the “op-
portunity to say no”, and that was sufficient. (Jd.,
at p. 17(. ‘-27).)
9
(5) The police would inevitably have discovered
the body even without Smith’s disclosure. (Jd., at
pp. 17(28)-18(2).)’
(6) Petitioner’s story of suicide would have been
disclosed even if trial counsel had not asked
Jerry Hamilton about the story Petitioner had
told during the attorney-client conference of
January 12, 1993. (Id., at pp. 18(10)-20(2).)
(7) By answering the questions posed by trial
counsel about attorney-client communications,
Petitioner, during his testimony at trial, impli-
edly consented to the disclosure and effectively
waived the attorney-client privilege. Under such
circumstances trial counsel’s failure to forewarn
* In a Memorandum of Points & Authorities filed in support of the
Second-Amended Federal Petition, at page 14, note 6, Petitioner stated:
.... Petitioner notes that there is good reason to be-
lieve that the police would have concluded their search
without discovering the body. Detective Schiotis had made a
visual search of the southeast bedroom and had not seen the
body. (CT 126(20)-127(18).) The police had apparently fin-
ished their search of the house at the time of the second
phone call from Smith, save for their intention to have a
computer expert attempt to access Petitioner’s computers.
(See App. N [Petitioner’s declaration]; CT 126-127; RT 493-
494.) Detective Schiotis had left the scene, apparently with
plans to return with that expert. (App. N.) Also the body
was wrapped in plastic (RT 487(22)-488(11), 489), and had a
lot of boxes and items stacked upon it, making it difficult to
detect. (RT 484.) A bed was obstructing the closet (RT 483)
and several air fresheners were deployed about the body to
mask its smell. (RT 484-486.)
Neither Respondent nor the Magistrate Judge, ever addressed or
rebutted these points. The burden of the government is to prove
inevitable discovery by a preponderance of the evidence. (U.S. v. Mejia,
69 F.3d 309, 319 (9th Cir. 1995).)
10
and consult with Petitioner was irrelevant. (/d.,
at p. 20(4-18).)
(8) Counsel’s decision to expose to the jury the
lies Petitioner told counsel during attorney-client
conferences may have been “unorthodox”, but it
can be justified as sound strategy, as exposing
how Petitioner lied to his own attorney supported
the defense theory of “Post Traumatic Stress Dis-
order”. (Id., at pp. 20-21.)
(9) Even if trial counsel failed to forewarn or
consilt before betraying his client’s secrets, and
even if counsel’s behavior impaired Petitioner’s
trust in counsel and led Petitioner to withhold
material information relevant to the case, these
circumstances do not establish a 6th Amendment
violation as Petitioner was not entitled to a
“meaningful relationship” with his attorney or to
one of “trust and candor”. (/d., at p. 22(14-24)
[citing Morris v. Slappy (1983) 461 U.S. 1, 14, 75
L.Ed.2d 610, 103 S.Ct. 1610.)’
(10) Moreover, Petitioner’s failure “to request a
change or substitution to counsel before or dur-
ing trial” forfeited his right to complain about
how trial counsel’s precipitous and unauthorized
disclosure of his secrets impaired the attorney-
client relationship. ([d., at p. 22(25-28).)
* True, the Constitution is not violated when a defendant
idiosyncratically fails to be candid with his att»rney — that is so long as
the attorney has been faithful to his professional end of the bargain. In
such an instance, the vagaries of a client’s state of mind are completely
his own problem. However, where an attorney’s unorthodox behavior
hazard’s his client’s trust, that conduct “must ... be imputed to the
State”. (Coleman v. Thompson, 501 U.S. 722, 754, 115 L.Ed.2d 640, 111
S.Ct. 2546 (1991).)
11
In an Objection filed on November 13, 2001 under 28
U.S.C. section 636(b), Petitioner contested each of the
above findings. (See App. O, pp. 1-35.) Some of the specific
points that Petitioner pressed were captioned in the
Objection as follows:
Ground #1: A. The Magistrate Judge incor-
rectly concludes that a significant and unauthor-
ized breach of the attorney-client privilege
(“ACP”) by a defense attorney is not “prima facie
evidence of unreasonable or incompetent assis-
tance of counsel”. (App. O, p. 2.)
1. The statutes and ethical standards vio-
lated by trial counsel, which are contained
in Grounds #1 to #3 of the federal petition.
(Id., at p. 3.)
2. Given the purpose of the privilege, a
lawyer who makes significant disclosures of
ACP material without the due consultation
and consent from his client is presumptively
incompetent. (Jd., at p. 6.)
B. Petitioner was prejudiced by the testimony
elicited by trial counsel from Jerry Hamilton re-
garding the privileged communications of Janu-
ary 12, 1993. (Id., at p. 9.)
1. Trial counsel’s improper elicitation of
privileged material during his cross-
examination of Jerry Hamilton at the pre-
liminary hearing. (Jd., at p. 10.)
2. Trial counsel’s examination of Jerry
Hamilton at trial [regarding ACP material]
and the ramifications thereof. (Id., at p. 10.)
3. Further ramifications of trial counsel’s
incompetence: the need to explain when,
how, and why Petitioner changed his story.
(Id., at p. 13.)
12
C. Magistrate Judge irrelevantly raises the doc-
trine of waiver in relation to [testimony from Pe-
titioner] explaining why he lied to his attorney
and why he later decided to tell the truth. (/d., at
p. 18.)
D. The Magistrate Judge erroneously frames
trial counsel’s elicitation of ACP material from
Petitioner as a tactical choice worthy of deference
when counsel lacked the power to unilaterally
disclose the information in the first instance.
(Id., at p. 19.)
Ground #2: A. It is well settled that the effec-
tiveness of counsel at trial can be compromised
by counsel’s conduct before the commencement of
adversarial judicial proceedings. (Jd., at p. 25.)
B. The Magistrate Judge improperly concludes
that Petitioner waived his ACP with respect to
the location of Susan’s body when the facts before
the Court are all to the contrary. (Jd., at p. 26.)
C. The Magistrate Judge’s application of the
‘inevitable discovery doctrine’ is unfounded and
contrary to the undisputed evidence in the rec-
ord. (Id., at p. 29.)
D. The Magistrate Judge erroneously equates
Ground #2 with cases in which a defendant had
competent counsel, but not a ‘meaningful rela-
tionship’ therewith. (/d., at p. 30.)
E. Ground #2 warrants application of the per se
standard of reversal attendant to structural er-
ror. (/d., at p. 32.)
Ground #3: A. Trial counsel’s mismanagement
of ACP material created an actionable conflict of
interest. (/d., at p. 34.)
Despite the above objections, and the extensive
supporting argument for each, on August 13, 2002, the
District Court Judge adopted the Magistrate Judge’s
13
Report and Recommendation. (App. E.) On September 9,
2002, Petitioner noticed his appeal and sought an exten-
sion of time to file a request for a Certificate of Appealabil-
ity (“COA”). (App. P.) The District Court denied the
request, ruling that it was “unnecessary as the notice of
appeal is deemed to constitute a request for a Certificate of
Appealability”. (App. C.) On September 17, 2002, the District
Court, apparently Working from the Magistrate J udge’s
Report and Recommendation filed on August 8, 2002,
decided for all ten grounds of the Second-Amended Federal
Petition, that “Petitioner [had] not made the required
substantial showing of the denial of a constitutional right”.
(App. B.)
As was allowed under Circuit Rule 22-1, Petitioner
then filed a motion with the Ninth Circuit in support of his
request for leave to appeal. (App. Q.) Attached as Exhibit
‘C’ to that motion was the Objection Petitioner filed with
the District Court. In addition the Motion supplemented
Petitioner’s showing with additional argument concerning
Grounds #1 to #3, and #5 to #8, of the Second-Amended
Federal Petition, i.e., the very Grounds which are impli-
cated by the five questions presented in this Petition for
Writ of Certiorari.
More specifically, the Circuit Rule 22-1 Motion filed
with the Ninth Circuit alerted that Court to the debatable
legal and factual issues which were the basis of the find-
ings of the District Court on Grounds #1 to #3. (See App.
Q, pp. 4-10, 20-21 [the Rule 22-1 Motion].) After that
Motion was denied, Petitioner filed for rehearing. His
petition for rehearing raised the legal and factual issues
which are now before this Court in the form of ‘Questions
Presented’ #1 and #2. (App. R.) Before rehearing was
venied, Petitioner also filed a letter brief under F.R.A.P,
14
Rule 28(j), asking the Ninth Circuit Court to take notice of
its recent and contradictory decision in McClure v. Thomp-
son, 323 F.3d 1233, 1242-1243 (9th Cir. 2003) [holding that
a defense attorney’s unauthorized disclosure of the client-
confided location of a murder victim’s body constitutes a
Sixth Amendment violation].) (App. S.)
E. JURISDICTIONAL FACTS RELATED TO QUES-
TION PRESENTED #3
Question Presented #3 is concerned with the structure
of the prejudice analysis performed on Petitioner’s ineffec-
tive counsel claims in District Court. During the relevant
passages of the Report and Recommendation, the Magis-
trate Judge repeatedly observes that the jury “could still
have found Petitioner guilty” — or words to that effect —
even if trial counsel had presented the extra-record evi-
dence which is the basis of Grounds #5 to #8 of the Second-
Amended Federal Petition.
In his November 13, 2001 Objection Petitioner argued
that this was not the correct inquiry. In essence, the
Magistrate Judge applied the Jackson v. Virginia, 443 U.S.
307, 319, 61 L.Ed.2d 560, 99 S.Ct. 2781 (1979), standard
for claims of insufficient evidence to four claims that
should have been analyzed under Strickland’s “probabilis-
tic” standard. (App. O, pp. 38-53.) This argument was also
pressed in the motion that Petitioner filed with the Ninth
Circuit. (App. Q, pp. 13-18.) Furthermore, Question
Presented #3 was raised again in the Petition for Rehear-
ing filed with the Ninth Circuit. (App. R, pp. 5-9.)
ih eg ate vibe Rr Be eer mew 3g Sa ae ee meta
Pie Aicueniion har
15
F. JURISDICTIONAL FACTS RELATED TO QUES-
TION PRESENTED #4
Question Presented #4 was raised in Petitioner’s
Objection as filed with the District Court on November 13,
2001. (App. O, pp. 53-64.) Petitioner’s Rule 22-1 Motion
with the Ninth Circuit gave the issue additional emphasis.
(App. Q, pp. 11-12.)
G. JURISDICTIONAL FACTS RELATED TO QUES-
TION PRESENTED #5
As previously noted, the District Court deemed
Petitioner’s Notice of Appeal to be a request for a Certifi-
cate of Appealability on all grounds of the petition, and for
all the reasons covered by Petitioner’s Objection. (App. B.)
Petitioner’s Circuit Rule 22-1 Motion for a Certificate of
Appealability in the Ninth Circuit emphasized the impor-
tant and debatable legal and factual questions bearing on
Grounds #1 to #3 and #5 to #8 of the Second-Amended
Federal Petition. (App. Q.) Both that document and the
subsequent Petition for Rehearing, requested a COA on
those seven grounds. (App. Q & App. R.) Thus, this Court
has jurisdiction to consider all five Questions Presented.
REASONS FOR GRANTING THE WRIT
Reason #1: Certiorari should be granted to close a gap
in this Court’s jurisprudence regarding the attorney-client
privilege. In Upjohn v. United States, Fischer v. United
States, United States v. Zolin, and Weatherford v. Bursey,
this Court held that the Sixth Amendment and the
attorney-client privilege stand to safeguard a legitimate
16
attorney-client relationship and its secrets from intrusion
by opposing parties and the Government.’ In Nix v. White-
side, this Court made clear that neither the Sixth Amend-
ment nor the attorney-client privilege shields a client’s
announced plans to engage in future criminal conduct,
such as perjury.’ However, the Court has never written to
define the degree of discretion that an attorney. has in
disclosing his client’s confidences about a completed crime,
nor the extent to which an unauthorized disclosure by a
criminal defendant’s attorney may be said to violate the
Sixth Amendment. Indeed, in Nix v. Whiteside, supra, the
Court pointed out the need to address this issue “[i]Jn some
future case”. (Id.; at 475 U.S. 165-166.)
The lower federal courts exploited this lacuna, ex-
pressly finding that “while a violation of attorney-client
privilege, if proven, may be a violation of ethical cannons,
it is not prima facie evidence of unreasonable or incompe-
tent assistance of counsel”. (App. F, p. 13(9-11).) The
District Court observed that it could not “find any state-
ment of law which holds, that counsel has an affirmative
duty to inform his client of the protection of [the] attorney-
client privilege before seeking consent to disclose the
privileged information”. (/d., p. 13, fn. 5.) It then concluded
that Petitioner could not succeed on federal petition
Grounds #1 to #3 unless he proved that counsel’s betrayal
* Upjohn v. United States, 449 U.S. 383, 389, 66 L.Ed.2d 584, 101
S.Ct. 677 (1981); Fischer v. United States, 425 U.S. 391, 403, 48 L.Ed.2d
39, 96 S.Ct. 1569 (1976); United States v. Zolin, 491 U.S. 554, 562, 105
L.Ed.2d 469, 109 S.Ct. 2619 (1989); Weatherford v. Bursey, 429 U.S.
545, 554, fn. 4, 51 L.Ed.2d 30, 97 S.Ct. 837 (1977).
* Nix v. Whiteside, 475 U.S. 157, 165-166, 89 L.Ed.2d 123, 106 S.Ct.
988 (1986).
17
of his confidences was “outside the broad scope of reason-
able and competent behavior”. (Id., at pp. 13(11-15), 17(19-
20).) Thus, under the District Court’s analysis, the de-
ployment of privileged information was within the strate-
gic prerogative of Petitioner’s attorney, just as, say, a
decision to call a given witness (other than Petitioner)
was.
Petitioner strove mightily to persuade the lower
courts that the unauthorized disclosure of a client’s legiti-
mate confidences — especially without advance consulta-
tion — is not within the lawful and ethical purview of an
attorney's strategic fiat. Based upon the relevant statutes,
ethical canons, and this Court’s decisions, Petitioner would
appear to have the better argument.
Under California: Business and Professions Code
section 6068(e), trial counsel had a duty to “maintain
inviolate the confidence, and at every peril to himself...
to preserve the secrets, of his or her client”. The American
Bar Association’s (ABA) Ethical Canon 4 provides: “A
lawyer should preserve the confidences and secrets of a
client.” The ABA’s Ethical Consideration EC4-4 provides in
pertinent part: “A lawyer owes an obligation to advise the
client of the attorney-client privilege and timely to assert
the privilege unless it is waived by the client.” ABA Model
Rule of Professional Conduct (1983), Rule 1.6 provides a
list of well established exceptions to the rule of confidenti-
ality, only one of which is pertinent to this case: A lawyer
may reveal confidential information if “the client consents
after consultation”. Consistent with the ABA rule, a
respected treatise on California Criminal Practice de-
scribes the proper procedure to follow in the initial client
interview:
18
Perhaps the most important objective of the ini-
tial interview is to establish the proper attorney-
client relationship. The attorney must strive to
develop a climate of trust by explaining the at-
torney-client privilege, pointing out that a suc-
cessful outcome requires that the attorney know
all the facts, and conducting the interview in a
manner that inspires confidences and trust.
(Lexis-Nexis (2003) California Criminal Defense Practice,
§ 1.13(2)(b), p. 1-44.11.) |
Furthermore, black-letter law in California reinforces
the ABA rules on the subject. California Evidence Code
sections 953 to 955 state that the privilege is vested in the
client, not his attorney. “A lawyer who ... received... a
communication that is subject to the lawyer-client privi-
lege has a duty to claim the privilege whenever he ... is
present when the communication is sought to be disclosed,
unless the holder of the privilege no longer exists or
instructs the lawyer otherwise.” (Jefferson’s California
Evidence Benchbook (8rd Ed., 2003) § 40.7 (emphasis
added). Waiver of the privilege can only occur “if any
holder of the privilege ... has consented to [such] disclo-
sure”. (Cal Evidence Code § 912(a).) The attorney, under
California law, is not defined as a “holder” of the attorney-
client privilege. (Cal. Evidence Code § 953.)
According to this Court’s precedent, these statutes
and professional rules have compelling weight in context
of the Sixth Amendment analysis for ineffective counsel
claims — such as those made by Petitioner. (Strickland v.
Washington, 466 U.S. 668, 688-689, 80 L.Ed.2d 674, 104
S.Ct. 2052 (1984); Wiggins v. Smith, __ US.
eee
L.Ed.2d ___, 123 S.Ct. 2527, 2534-2539 (2003) [parts IIA
and IIB(1) citing ABA standards as “guides to determining
what is reasonable”].)
eR TAR Nt? SNELL NL ape GLC
19
Thus, contrary to the Magistrate Judge’s assertion, a
violation of the attorney-client privilege is prima facie
evidence of unreasonable and incompetent assistance of
counsel. How. could it be otherwise? The District Court, in
essence, held that an attorney’s violation of explicit state
statutes, and the related ABA standards, may yet be
competent, ethical, and reasonable. 7
Lacking a rebuke through this case, and broader
guidance on principle, attorneys and courts will remain
empowered to assess a defense attorneys unilateral
disclosure of his client’s secrets in terms of whether
pragmatic justification for them can be postulated.
In deciding to grant certiorari, this Court should
reflect upon the fact that this case has reached it because
16 judges’ felt that trial counsel Smith’s conduct was
perfectly within the ambit of his authority and the Sixth
Amendment. The federal judges who have reviewed the
case do not even think that Grounds #1 to #3 are worthy of
appeal. Such circumstances evidence a dire need for an
admonishment and instruction from this Court. (See
Miller-El v. Cockrell, 587 U.S. 322, 154 L.Ed.2d 931, 123
S.Ct. 1029, U.S. cert. den., 155 L.Ed.2d 194 (2003).)
Reason #2: Certiorari should be granted because it is
unlikely that a case more probative of the relationship
between the Sixth Amendment and the attorney-client
privilege will come along. As previously noted, the Ninth -
Circuit just decided a case in which a defense attorney
* That is, one Superior Court Judge, three Judges of the California
Court of Appeal, seven Judges of the California Supreme Court, the
Magistrate Judge, the District Court Judge, and three Judges of the
Ninth Circuit.
20
disclosed without authorization the client-confided loca-
tion of a murder victim’s body. (McClure v. Thompson, 323
F.3d 1233, 1235-1239 (9th Cir. 2003).) McClure is probably
now before this Court seeking certiorari. Given the split
panel decision in McClure, there may be good cause for
certiorari to be granted. However, in that case the attorney
believed that his disclosure could potentially save lives.
(Id., at 1236.) In the case sub judice, no one has tried to
justify the disclosures in terms of the prevention of other
criminal acts or the saving of life. Moreover, in this case,
there were multiple breaches of the privilege, breaches
across the entire spectrum of trial counsel’s repr2sentation
of Petitioner. In McClure there was only one.
To aid this Court in assessing the “cert-worthiness’”,
both as an independent proposition and _ vis-a-vis
McClure’s, it will be helpful for the Court to know some-
thing about the other ways that attorney Smith exposed
information subject to the ACP.
Petitioner has already described the way in which
Smith revealed the location of Susan Kurtz’s body. Unfor-
tunately, Smith’s penchant for revealing privileged mate-
rial manifested itself in other ways, both at Petitioner’s
preliminary hearing and at trial. Petitioner will now
describe the events at trial.
When Jerry Hamilton testified, Smith broached the
subject of the content of the attorney-client conference of
January 12, 1993. (RT 123(22)-125(3).) In light of the
apparent waiver of the privilege, the prosecutor on redi-
rect elicited that Petitioner had told Smith where the body
was and that Petitioner had lied to Smith, saying that
Susan had committed suicide. (RT 133-134.) Later in the
trial, Mr. Hamilton was recalled to the stand and Smith
expanded the scope of the privileged facts divulged to the
21
jury. Under Smith’s questioning, Mr. Hamilton testified
that Petitioner “may have” told Smith that he found Susan
hanging from the rafters in the garage and that Petitioner
did tell Smith that he found Susan on the floor beneath
the rafters. (RT 445.)
This testimony in no way helped Petitioner. The
coroner conciusively ruled out death by hanging (RT 345,
422-423), and Petitioner’s own testimony was inconsistent
with the suicide/rafter’s story. (RT 724-748.)
The brunt of these unprofessional errors began to be
felt by Petitioner during his testimony in the defense case.
Trial counsel knew that his client had abandoned the
suicide/rafters story. Nonetheless, he had allowed the jury
to learn that Petitioner had told him that story at the
outset of the attorney-client relationship. This created a
rhetorical problem. Before he could have his client tell the
truth, he first had to explain how and why his client had
abandoned the false suicide/rafters story. The upshot of
these considerations was that, barely a minute into the
direct examination, Attorney Smith had Petitioner
admit that he had lied to Smith. (RT 684.) Later in the
direct examination, Smith asked Petitioner to tell the jury
why he had lied to Smith. (RT 778.) Trial counsel asked
Petitioner to describe what caused him “to admit that [he
was] responsible for her death after months of lying?” (RT
779(10-11).) Smith, of course, knew that this question
would elicit privileged material, as an excerpt from the
transcript will make clear:
A. [By Petitioner]: “... the final straw [in ad-
mitting that I was responsible came] in that
meeting that we had together, you [i.e., Smith]
had indicated to me that given the facts in this
case and what I had said ... wasn’t very plausi-
ble.
22
Q. At that meeting, did you tell me what hap-
pened?
A. No.
Q. When did — how long after that meeting did
you come to me?
A. The next day.”
(RT 779-780.)
Smith then led Petitioner through a series of ques-
tions establishing that Petitioner had never admitted his
responsibility for Susan’s death prior to the January 12,
1993 attorney-client conference. (RT 780.) The prosecutor
on cross-examination made predictable and. devastating
use of the scope of Smith’s ever-widening elicitation of
attorney-client information:
Q. [By the Prosecutor] You met with your attor-
ney and he told you that if you maintained this
story of suicide, you were going to go down on
first degree murder. And he told you to think
about that and ... now we have this story you’ve
related here in court.
M. Smith: Again, Your Honor, object, misstating
the testimony of the witnesses.
The Court: Sustained.
Q. Did your attorney sit down with you and tell
you that your story of suicide wasn’t going to
wash?
A. Not in those words.
Q. In-—in words to that effect?
A. Yes.
Q. And he told you to think about it?
A. No.
23
Q. Well, it was at some point after that discus-
sion, was it not, that this story surfaced about
this struggle in the house?
A. That’s correct. (RT 786(7-25).)
Later, the prosecutor ravaged Petitioner’s credibility with
these questions.
Q. When did you tell Mr. Smith, you told him
that she had committed suicide?
A. That's correct.
Q. And it wasn’t until he sat you down and said
that that wasn’t going to wash that your story
changed?
Mr. Smith: Your Honor, I am going to object to
the form of question. I think it’s misleading the
evidence.
The Court: Sustained. Rephrase.
Q. When you met Mr. Smith, you didn’t tell him
that you had had this struggle and she acciden-
tally was killed?
A. No.
Q. In fact, you told him about this suicide.
When you talked to him about the suicide, did
you say she was hanging from the rafters?
A. Idon’t recall. *
Q. You don’t recall what you told your lawyer
when you first met him and told him about your
wife’s death?
A. No.
(RT 814(7-25).) However, the prosecutor was not finished
exploiting the advantages offered by the scope of Smith’s
direct:
Q. Isn’t it a fact that — strike that. At the pre-
liminary hearing, back in February, you heard
24
the testimony of Doctor Gopal regarding the
medical evidence in this case?
A. Yes, I did.
Q. And you heard him say at that time that this
was not a hanging, not a suicide. Do you recall
that?
A. Yes.
Q. And isn’t it true it was after that point in
time that you decided to say that, yes, you were
involved in her death but it was this accidental
killing?
A. It might have been after that, yes.
(RT 828-829.)
Predictably, during closing argument, the prosecutor
leveraged the windfall of privileged information that he
had been handed into a stunning attack on the bonafides
of Petitioner’s testimony:
Well, come February at the preliminary hearing,
[Petitioner] learns different. This isn’t a suicide,
it is not a hanging. The physical evidence is in-
compatible with his second lie so he has had six
months to think about his third one and you
have heard it here, Friday and yesterday. The.
way he has craftily lied throughout this case re-
minds me of the saying I generally don’t quote,
but there is a saying that says, ‘Oh, what a tan-
gled web we weave, when we practice to deceive’.
That quote was made hundreds of years ago, I
believe, but you’d think that the author had this
man in mind.
(RT 902-903.)
Later in his summation the prosecutor remarked that
Petitioner had lied to everyone, even “to his own attorney
... but now he would have you believe that he’s telling the
:
25
truth. He is not. He’s lying to you.” (RT 944.) From the
above passages and facts, this Court can readily see that
trial counsel exposed nearly the entire attorney-client
relationship to the jury. Petitioner alleged that he did so
without consultation, and no evidence to the contrary was
ever adduced. (See Second Amended Federal Petition, App.
L, pp. 8-10.) On such facts, Petitioner should not only have
been granted a COA, he should have been granted relief.
Reason #3: Certiorari should be granted to explore
whether the Strickland outcome-determinative standard
should be applied, or a less-error tolerant one, to claims
such as Petitioner’s Ground #1 and #2. Petitioner pre-
sented to the District Court prima facie evidence that the
breach of the privilege inhibited him from disclosing vital
facts bearing on the charges against him. (See App. M
[Ground #2].) Such allegations should not be hard for this
Court to believe. “(I]f the client knows that damaging
information could more readily be obtained from the
attorney ... [a] client would be reluctant to confide in his
lawyer and it would be difficult to obtain fully informed legal
advice.” (Fischer v. United States, 425 U.S. 391, 403, 48
L.Ed.2d 39, 96 S.Ct. 1569 (1976).) The “Sixth Amendment’s
assistance-of-counsel guarantee can be meaningfully
implemented only if a criminal defendant knows that his
communications with his attorney are private... .”
(Weatherford v. Bursey, 429 U.S. 545, 554, fn. 4, 51
L.Ed.2d 30, 97 S.Ct. 837 (1977).) The privilege is therefore
central “to the proper functioning of our aciversary system
of justice.” (United States v. Zolin, 491 U.S. 554, 562, 105
L.Ed.2d 469, 109 S.Ct. 2619 (1989).)
The District Court shrugged off these authorities, and
Petitioner’s qualms with respect to the standard of review
being applied to his claims, holding that it was Petitioners
26
responsibility, even without advice from his attorney on the
scope and nature of the privilege, to realize that counsel’s
actions were unlawful and unethical, and Petitioner’s
responsibility to seek to terminate his (rather expensive)
relationship with his attorney. (App. F, pp. 22(14)-23(8)
[denying Ground #2].)
The District Court’s reasoning stands on its head the
whole principle behind the Sixth Amendment’s guarantee
of effective counsel. Under the District Court’s analysis,
the client must be sufficiently versed in the nuances of the
privilege to recognize the impropriety of his attorney's
behavior; and, if he is not that sophisticated, he is deemed
te have forfeited his rights — both under the attorney-
client privilege and the Sixth Amendment. Yet, this Court
has observed: “[a] layman may not be aware of the precise
scope, the nuances, and boundaries of [a testimonial
privilege like the 5th Amendment].” (Maness v. Meyer, 419
U.S. 449, 466, 42 L.Ed.2d 574, 95 S.Ct. 584 (1975).) How
much more so the atvorney-client privilege? This Court
may answer that question, and demonstrate the proper
standard of review for claims such as Petitioner’s by
granting certiorari.
Reason #4: Certiorari should be granted to address the
intra-circuit split created by the Ninth Circuit’s holdings
in McClure v. Thompson, 323 F.3d 1233 (9th Cir. 2003),
and this case. Such a split is a recognized basis for certio-
rari to be granted. (Stern, Gressman, et al., Supreme
Court Practice (7th Ed. 1993) § 4.6 at pp. 176-177.)
Ironically, McClure, decided within days of the denial
of Petitioner’s appeal by the Ninth Circuit, vindicates
Petitioner’s position and contradicts the District Court on
three core issues:
27
First, McClure holds that a material breach of the
attorney-client privilege “makes out a deprivation of the
Sixth Amendment right to counsel”. (d., at 1242-1243.) As
noted, the lower court held that a violation of the privilege
“is not prima facie evidence” of ineffective counsel. (App.
F, p. 13(7-11).)
Second, McClure holds that. the privilege is only
waived through “consent after consultation”. (/d., at 1243-
1245.) The lower court held thut consultation was not an
important factor. (App. F, pp. 13, fn. 5, 17(19-26).)-
Third, unlike McClure, no evidentiary hearing was
held in Petitioner’s case, and this despite Petitioner's
submission of declarations from two witnesses to Smith’s
disclosure of the location of the victim’s body and the
incontrovertible evidence of other breaches in the trial
transcript. Between those declarations and the trial
transcript, there was ample justification for an evidentiary
hearing where Smith could be asked to explain his con-
duct.
Thus, the decision in Petitioner’s case varies from the
holding in McClure in three foundational matters. Such
contradictions should not be allowed to stand.
Reason #5: Certiorari should be granted because the
District Court’s harmless error analysis was directly
contrary to this Court’s precedent and in a way that is a
recurring problem among the circuits. In presenting its
prejudice analysis for Grounds #5 to #7 (all claims of
ineffective assistance of counsel) the District Court failed
to determine whether there was a “reasonable probability
of a different outcome”. Instead, the District Court asked
whether, but for trial counsel’s errors, the jury “could still
have” found petitioner guilty. Finding that it “could”, the
District Court decided petitioner had not proven prejudice.
28
In all, the District Court applied this linguistic formula on
nine occasions in denying Grounds #5 to #7. The following
excerpts from the R&R will bring petitioner’s point into
focus:
“EXCERPTS FROM THE
MAGISTRATE JUDGE’S PREJUDICE
ANALYSIS FOR GROUND #5
The prosecution’s theory could reasonably be in-
terpreted by the jury as calling into question Pe-
titioner’s ability to handle another failure, the
loss of his business a second time to a wife who
could no longer put up with his drug addiction.
(App. F, p. 28(22-26).)
There was also more at stake than just the busi-
ness. There was the possibility that Petitioner
would lose custody of his son. Thus, even if Trial
Counsel had presented evidence of Petitioner’s
alleged financial independence, the jury could
still find the prosecution’s motive theory credible.
As Petitioner has failed to show prejudice, this
claim must fail. (/d., at p. 29(1-5).) (emphasis
added)
EXCERPTS FROM THE
MAGISTRATE JUDGE’S PREJUDICE
ANALYSIS FOR GROUND #6
Even if the jury believed every word of Peti-
tioner’s testimony regarding his wife’s anger,
they could still have found him guilty of first de-
gree murder. ... The jury could reasonably have
found that holding a computer cord around
someone’s head or neck is highly likely tovlead to
strangulation and death. Additionally, the jury
could still have determined that during the
struggle Petitioner had the opportunity con-
sciously to choose between walking or running
away from the house and his upset wife or killing
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29
her. They could reasonably have found that Peti-
tioner’s actions following the murder were evi-
dence of his consciousness of guilt. Finally, they
could have found that Petitioner, based on his
lies to family, friends, and police officers, was not
a credible witness and therefore did not believe
that this was an accident. (App. F, pp. 31(24)-
32(12.) (emphasis added)
EXCERPTS FROM THE
MAGISTRATE JUDGE’S PREJUDICE
ANALYSIS FOR GROUND #7
Therefore, [Petitioner] concludes, the jury must
have interpreted this receipt to mean that Susan
knew of Petitioner’s infidelities, and that de-
stroyed his credibility which led them to con-
vict.... The jury therefore did not need to infer
that she knew of his contact with prostitutes. ...
The jury could therefore have determined that
based on her suspicions she decided to get
tested... . Thus, exposure of the jury to this ex-
trinsic evidence did not necessarily incriminate
Petitioner or unduly influence their determination
of guilt or innocence. [] As discussed previously,
even if the jury believed Petitioner’s testimony
that he was only responding in kind to his wife’s
rage, the jury could still have found him guilty.
(App. F, pp. 34(20)-35(7).) (emphasis added)”
If this Court allows this case to end without appellate
briefing, it will have sanctioned the resolution of three
ineffective counsel claims under the Jackson v. Virginia
insufficiency of the evidence standard, rather than the
Strickland v. Washington standard, which obviously
governs the question, and it will have broken with its own
precedent.
Reason #6: Certiorari should also be granted to give
reinforcement to this Court’s jurisprudence regarding the
30
issuance of COA’s. The District and Circuit Courts are
under incredible pressure to manage their case loads. Yet
they are underfunded and understaffed. It is all too easy to
see how the rights of state prisoners to appeal can end up
being given short shrift. Prisoners are a despised class and
the job of vindicating the constitutional rights of state
prisoners can easily be rationalized as one best left to the
states — if not de jure, then at lease de facto. Yet this Court
has a storied history of protecting the rights of state
prisoners and has repeatedly observed that such statutory
schemes as 28 U.S.C. section 2253 are not to be construed
as denying the right to appeal issues which are debatable.
(See Barefoot v. Estelle, 463 U.S. 880, 893 & fn. 4, 77
L.Ed.2d 1090, 103 S.Ct. 3383 (1983); Miller-El v. Cockrell,
537 U.S. 322, 154 L.Ed.2d 931, 123 S.Ct. 1029, US. cert.
den., 155 L.Ed.2d 194 (2003).)
CONCLUSION
For all of the foregoing reasons, this Court should
grant Petitioner’s Petition for Writ of Certiorari and order
the lower courts to grant Petitioner a Certificate of Ap-
pealability. The above-referenced issues of violations of the
attorney-client privilege, violations of ethical canons,
violations of rules of professional responsibility, as they
relate to the Sixth Amendment’s guarantee of competent
counsel, are of critical importance to this nation’s criminal
justice system and are at the core of a criminal defense
attorneys duties to his client. These duties should be
addressed and delineated as this Court’s decision in Nix v.
Whiteside, supra, at 475 U.S. 165-166, mandated.
Dated: August 12, 2003 Respectfully submitted,
WILLIAM E. GILG
Attorney for Petitioner
Al
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT MICHAEL KURTZ, _| No. 02-16843
a D.C. No.
Petitioner-Appellant, CV-97-06201-AWI
Vv. Eastern District
ROBERT L. AYERS, Warden, _| California (Fresno)
Respondent-Appellee. ORDER
(Filed Mar. 18, 2003)
Before: BEEZER AND MCKEOWN, Circuit J udges.
The request for a certificate of appealability is :
denied. See 28 U.S.C. § 2253(c)(2).
Bl
APPENDIX B
IN THE UNITED STATES
DISTRICT COURT FOR THE
EASTERN DISTRICT OF CALIFORNIA
ROBERT M. KURTZ, ) CV F 97-6201 AWI SMS P
Petitioner, ‘ ORDER DENYING
" ) REQUEST FOR
' CERTIFICATE OF
ROBERT AYERS, Warden, APPEALABILITY
Respondent. _) (Filed Sep. 17, 2002)
On September 9, 2002, Petitioner filed a notice of
appeal from the judgment entered against him on August
14, 2002, denying his petition for writ of habeas corpus. In
connection with his appeal, Petitioner seeks a certificate of
appealability. The controlling statute is 28 U.S.C. section
2253, which provides as follows:
(a) In a habeas corpus proceeding or a proceed-
ing under section 2255 before a district judge, the fi-
nal order shall be subject to review, on appeal, by the
court of appeals for the circuit in which the proceed-
ing is held.
(b) There shall be no right of appeal from a final
order in a proceeding to test the validity of a warrant
to remove to another district or place for commitment
or trial a person charged with a criminal offense
against the United States, or to test the validity of
such person’s detention pending removal proceedings.
(c)(1) Unless a circuit justice or judge issues a
certificate of appealability, an appeal may not be
taken to the court of appeals from —
B2
(A) the final order in a habeas corpus proceed-
ing in which the detention complained of arises out of
process issued by a State court; or
(B) the final order in a proceeding under section
2255.
(2) A certificate of appeability may issue under
paragraph (1) only if the applicant has made a sub-
stantial showing of the denial of a constitutional
right.
(3) The certificate of appealability under para-
graph (1) shall indicate which specific issue or issues
satisfy the showing required by paragraph (2).
In the present case, the court finds that Petitioner has
not made the required substantial showing of the denial of
a constitutional right. Accordingly, the court hereby
ORDERS that Petitioner’s request for a certificate of
appealability is DENIED.
DATED: Sept. 17, 2002 /s/ Anthony W. Ishii
ANTHONY W. ISHII
UNITED STATES
DISTRICT JUDGE
Cl
APPENDIX C
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
ROBERT M. KURTZ, ) CV F 976201 AWISMS P
Petitioner, ORDER DENYING
) PETITIONER'S
APPLICATION FOR
ROBERT AYERS, Warden, ENLARGEMENT
Respondent, ) OF TIME AS MOOT
) (Document 59)
) (Filed Sep. 13, 2002)
V.
Petitioner is a state prisoner proceeding through
counsel with a petition for writ of habeas corpus pursuant
to 28 U.S.C. § 2254.
On August 13, 2002, the Court adopted the Findings
and Recommendation of the Magistrate Judge and denied
the petition for writ of habeas corpus. On August 14, 2002,
judgment was entered for Respondent, and the case was
dismissed.
On September 9, 2002, Petitioner filed a notice of
appeal, along with an application for an extension of time
to file a request for certificate of appealability. However,
an extension of time is unnecessary as the notice of appeal
-is deemed to constitute a request for a certificate of ap-
pealability. F. R. App. P. 22(b); United States v. Asrar, 116
F.3d 1268, 1270 (9th Cir. 1997).
Accordingly, Petitioner’s request for an extension of
time to file a request for certificate of appealability is
DENIED AS MOOT.
CARR LAL, Ber Oh a Nig d BEATIN PERE CA WE Le
C2
IT IS SO ORDERED.
DATED: 9/13/02 /s/ Sandra M. Snyder
SANDRA M. SNYDER
UNITED STATES
MAGISTRATE JUDGE
D1
APPENDIX D
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
ROBERT M. KURTZ, JUDGMENT IN A
CIVIL ACTION
CV-F-97-6201-AWI/SMS P
/ (Filed Aug. 14, 2002)
Vs.
ROBERT AYERS, Warden,
The Findings and Recommendations issued by the
Magistrate Judge on AUGUST 8, 2001, are hereby
adopted in full, and
IT IS HEREBY ORDERED AND ADJUDGED that
the petition for writ of habeas corpus is DENIED.
DATED: 8-14-02
JACK L. WAGNER, Clerk
By: /s/ [Illegible]
Deputy Clerk
El
APPENDIX E ~
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
ROBERT M. KURTZ, ) CV-F-97-6201-AWI-SMS-P
Petitioner, ORDER REGARDING
: , REPORT AND
. , RECOMMENDATION
ROBERT AYERS, Warden, ; inion
Respondent.
) (Filed Aug. 13, 2002)
Petitioner is a state prisoner proceeding pro se with a
Petition for Writ of Habeas Corpus pursuant to 28 U.S.C.
§ 2254.
On August 8, 2001, the Magistrate Judge filed a
Report and Recommendation that the Petition for Writ of
Habeas Corpus be DENIED. This Report and Recommen-
dation was served on all parties and contained notice that
any objections were to be filed within thirty (30) days from
the date of service of that order. On November 13, 2001,
Petitioner filed timely objections to the Report and Rec-
ommendation.
In accordance with the provisions of 28 U.S.C.
§ 636(b)(1)(C), this Court has conducted a de novo review
of the case. Having carefully reviewed the entire file,
including Petitioner’s objections, the Court concludes that
the Magistrate Judge’s Report and Recommendation is
supported by the record and proper analysis. Petitioner’s
objections present no grounds for questioning the Magis-
trate Judge’s analysis.
E2
Accordingly, IT IS HEREBY ORDERED that:
1. The Report and Recommendation, filed August 8,
2001, is ADOPTED IN FULL;
2. The Petition for Writ of Habeas Corpus is DE-
NIED;
3. The Clerk of the Court is DIRECTED to enter
judgment for Respondent; and,
4. All pending motions are DENIED as moot.
DATED: 8-13-02 /s/ Anthony W. Ishii
ANTHONY W. ISHII
UNITED STATES
DISTRICT JUDGE
mn —— ee
Fl
APPENDIX F
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
ROBERT M. KURTZ, ) CV F 97-6201 AWI SMS P
Petitioner, REPORT AND
) RECOMMENDATION
PETITION FOR WRIT
ROBERT AYERS, WARDEN OF HABEAS CORPUS
Respondent. - )(Filed Aug. 8, 2001)
Robert M. Kurtz (“Petitioner”) is a state prisoner
proceeding pro se with a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254.
PROCEDURAL HISTORY
On August 26, 1993, a jury found Petitioner guilty of
murder in the first degree of his wife Susan. It was further
found true the special enhancement, use of a dangerous
weapon. Petitioner was then sentenced to a term of
twenty-five years to life, plus one year for the special
enhancement. On August 4, 1994, Petitioner filed an
appeal with the Court of Appeals for the State of Califor-
nia, Fifth Appellate District. On June 6, 1995, the Court of
Appeals, in an unpublished opinion, affirmed Petitioner’s
conviction. On July 11, 1995, Petitioner filed a petition for
review with the California Supreme Court. Petitioner
alleged, as he had before the appellate court, that the trial
court erred by failing to give CALJIC No. 8.73; prejudicial
error in the exclusion of expert testimony regarding
defendant’s propensity for violence; and violation of the
right to public trial when the trial court ordered the
F2
courtroom locked during closing arguments. The court
denied his petition on August 30, 1995, without citation or
comment.
On February 26, 1997, Petitioner filed his first Peti-
tion for Writ of Habeas Corpus with the Fresno County
Superior Court, which was denied on March 14, 1997. On
April 7, 1997, Petitioner filed a Petition for Writ of Habeas
Corpus with the state appellate court, which was denied
on April 10, 1997. Petitioner filed a Petition for Review
with the California Supreme Court on April 21, 1997.
Petitioner alleged: (1) violation of due process through the
inadvertent admission of hearsay evidence; and (2) ineffec-
tive assistance of counsel for failing to search Susan’s
wallet and for failing to request CALJIC No. 8.73. On June
18, 1997, the California Supreme Court denied Petitioner’s
petition, stating simply “petition for review denied on the
merits.”
On May 6, 1997, Petitioner filed a second Petition for
Writ of Habeas Corpus with the Fresno County Superior
Court, which was denied on May 14, 1997. On June 24,
1997, Petitioner filed his second Petition for Writ of
Habeas Corpus with the state appellate court, alleging
several claims of ineffective assistance of counsel. The
state appellate court sent three letters to Trial Counsel,
July 9, 1997, December 9, 1997, and February 17, 1998,
asking for a declaration in response to Petitioner’s claims.
Petitioner filed a Petition for Writ of Habeas Corpus
with this court on December 12, 1997, presenting the same
four claims alleged in his first state habeas petition.
Petitioner simultaneously filed a motion to hold his
petition in abeyance while he exhausted the claims pre-
sented in his second state habeas petition. On December
F3
26, 1997, Respondent was ordered to respond. On Febru-
ary 4, 1998, Respondent filed a response in opposition.
Petitioner filed a reply on February 9, 1998. On March 2,
1998, Petitioner’s motion to hold the petition in abeyance
was denied and Respondent was ordered to respond. On
April 20, 1998, Petitioner filed a petition to withdraw his
petition without prejudice. On April 28, 1998, this Court
issued an order clarifying its position regarding denial of
Petitioner’s motion to hold the petition in abeyance. The
Court ordered petitioner to notify the court of his inten-
tions and notified Respondent that Respondent need not
respond until Petitioner made his intentions clear. On May
7, 1998, Petitioner filed his response notifying the court of
his intent to proceed. On July 27, 1998, Respondent filed
an Answer. On June 3, 1998, Petitioner filed a Traverse.
Meanwhile, having received no response from Trial
Counsel, the state appellate court denied the second
Petition for Writ of Habeas Corpus on January 29, 1999.
On April 9, 1999, Petitioner filed his second Petition for
Wr.t of Habeas Corpus with the California Supreme Court.
The ten claims alleged were ineffective assistance of
counsel based on the following: violation of attorney-client
privilege (comprising eighi of the ten claims); failing to
present evidence to rebut the motive theory of the case;
and failing to introduce corroborating evidence of Susan’s
state of mind through her “step diary.”
On July 19, 1999, this Court issued an order notifying
Petitioner that it was ready to proceed on the merits of his
' “Step” refers to the twelve step program of Alcoholics Anonymous
and related programs.
ee
F4
case, but had not received an amended petition for addi-
tional claims. The Court further specified that Petitioner
had twenty (20) days to show cause why this Court should
not proceed. On July 27, 1999, Petitioner filed a second
motion to hold his petition in abeyance pending exhaus-
tion of his claims in state court.
On July 28, 1999, the California Supreme Court
denied Petitioner’s second Petition for Writ of Habeas
Corpus citing In re Clark, 5 Cal. 4th 750 (1993); In re Rob-
bins, 18 Cal. 4th 770, 780 (1998); and In re Waltreus, 62
Cal.2d 218, 225 (1965).
On August 6, 1999, Petitioner filed his Second
Amended Petition for Writ of Habeas Corpus with this
court.
On October 8, 1999, the Court issued an order grant-
ing Petitioner’s motion to amend the petition, denying
Petitioner’s motion to hold the petition in abeyance, and
ordering Respondent to file a response to the second
amended petition. On March 23, 2000, Petitioner filed a
Motion for Expansion of the Record. On April 10, 2000,
Respondent filed his Answer to the Second Amended
Petition for Writ of Habeas Corpus and a Notice of No
Opposition to Motion for Expansion of the Record. Peti-
tioner filed a Traverse on June 13, 2000. Petitioner then
filed a request to supplement the points and authorities to
his traverse and the supplemental memorandum of points
and authorities in support of traverse on July 24, 2000. On
August 2, 2000, the Court issued an order granting the
supplementation of the memorandum of points and au-
thorities in support of Petitioner’s Traverse. On August 30,
2000, Petitioner filed an application and request for an
F5
evidentiary hearing as to grounds one through eight (1-8)
of the second amended petition.
Petitioner presents ten (10) claims in his Second
Amended Petition for Writ of Habeas Corpus (hereinafter
“2AP”). The first eight claims are all based on ineffective
assistance of counsel and include: (1) ineffective assistance
of counsel through Trial Counsel’s mismanagement of
information covered by attorney-client privilege; (2)
constructive denial of effective assistance of counsel
through violations of attorney-client privilege; (3) conflict
| of interest based on violations of attorney-client privilege;
(4) conflict of interest based on Trial Counsel’s relationship
with the District Attorney’s Office and the Police Depart-
ment; (5) Trial Counsel’s failure to present evidence to
rebut the prosecution’s motive theory; (6) Trial Counsel’s
failure to present corroborative evidence regarding Susan’s
state of mind; (7) ineffective assistance of counsel and due
process violations through Trial Counsel’s failure to
inventory Susan’s wallet before allowing its admission into
evidence resulting in admission of damaging hearsay
evidence; and (8) Trial Counsel’s failure to request CALJIC
No. 8.73 (relating to provocation and the degree of mur-
der). The remaining two claims are: (9) violation of due
process and the right to a jury trial through the trial
court’s failure to give, sua sponte, CALJIC, No. 8.73; and
(1%) insufficient evidence to support a finding of first
degree murder.
A, Bt Ai a LN I iB Si tte iy Nic ces Se
Ghetiadaens 2
F6
FACTUAL HISTORY’
Petitioner and Susan Kurtz owned a computer store,
MacSource, in Fresno. They had a troubled marriage due
largely to Petitioner’s alcohol and cocaine use. Because of
Petitioner’s cocaine use, Susan had removed his name
from the MacSource checking account.
The couple separated between August and October of
1992. They reunited, and Susan became pregnant with
their second child. In January of 1993, Susan began to do
her work from their home because she was having a
difficult pregnancy.
Petitioner was in recovery from his addictions and
attended Alcoholics Anonymous (“AA”) meetings. As part
of the AA program, members are required to have a
sponsor, and work through a twelve (12) step program.
The fourth step requires the creation of a personal inven-
tory of the member’s life, including a list of wrongs they
committed and the people they resented.
On Tuesday, January 5, Petitioner went to an AA
meeting. Petitioner’s sponsor, Reed Harris, noticed that
Petitioner was agitated that evening. Petitioner revealed
to Harris that Susan had found his fourth step notes.
On Thursday, January 7, 1993, Petitioner reported his
wife missing. Petitioner claimed his wife had left their
home at 9:30 p.m. that evening. Her car was found at their
business; Susan’s coat and the keys to the store were
inside. Susan’s purse, some cash ($75.00) and a computer
* The following facts are summarized from the state appellate
court slip opinion issued June 6, 1995.
F7
printer were missing and the back door appeared to have
been tampered with. Police officers filed a missing persons
report.
On Monday, January 11, 1993, Petitioner went out to
dinner with his mother and stepfather, Kathy and Jerry
Hamilton. During dinner, Petitioner told them Susan was
dead. Petitioner claimed Susan committed suicide in the
garage. Petitioner arranged to turn himself in to his
attorney the following morning. Later that same evening
he told his AA sponsor, Reed Harris, about Susan’s suicide.
On Tuesday, January 12, police executed a search
warrant at Petitioner’s home. Petitioner arrived during
the search of his home in order to get a change of clothes.
He was allowed to get the clothes and leave. He then went
to his attorney’s office. While the search warrant was still
being executed, Petitioner’s attorney telephoned the house
and told the officers the location of Susan’s body.
Susan’s body was found in the home on the closet floor
of the southeast bedroom. A bed had been pushed up
against the closet door and there were air fresheners in
the room and in the closet. Susan’s feet were bound with
duct tape and her body was wrapped in several layers of
plastic.
It was the pathologist’s opinion that Susan died from
strangulation. The pathologist found evidence of both
ligature and manual strangulation. Susan also had a black
eye and injuries to her tongue. The doctor testified that in
his strong opinion these injuries were not consistent with
Susan hanging herself. Susan was five feet six inches tall
-and weighed two hundred and forty-two pounds at the
time of the autopsy. The fetus she was carrying was eight
to ten weeks old.
F8
Defense
Petitioner testified at trial. He said Susan had found
his fourth step paperwork. In this document Petitioner
had detailed all of the extra-marital sexual encounters
that he had engaged in while using drugs. Petitioner said
that Susan became very upset and wanted to talk to him
but he refused. The next morning Susan again tried to
talk with him, which lead to a physical altercation. Peti-
tioner said that during this fight he was trying to restrain
or control Susan with a computer cable and accidentally
choked her to death.*
Petitioner testified that he hid Susan’s body because
he was overwhelmed with guilt and did not think_anyone
_ would believe him. Petitioner admitted he had been
dishonest with the police, his lawyer, and many others.
Petitioner was examined by Dr. Phillip Hamm, a
licensed psychologist, who opined that immediately after
Susan’s death Petitioner was suffering from post trau-
matic stress disorder. He had an overwhelming guilt
reaction and believed that no one would believe what
really happened. Several witnesses testified that they
knew Petitioner and that he did not have a reputation for
violence. In addition, witnesses testified that it was not
unusual for Petitioner to have a computer cord draped
around his neck while he was working on computers.
* On January 2, 1993, Petitioner weighted 155 pounds.
PN haere tine MA MTS We
LLG Cad. aimee te certs .
A he Root dis a
OE Se ee Te eee
ae
i
F9
STANDARD OF PROCEDURAL REVIEW
a. Antiterrorism and Effective Death Penalty Act
On April 24, 1996, Congress enacted the Antiterrorism
and Effective Death Penalty Act 1996 (“AEDPA”), which
applies to all petitions for writ of habeas corpus filed after
its enactment. Lindh v. Murphy, 521 U.S. 320 (1997);
Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997) (en
banc). Since petitioner filed the instant petition on April 6,
1999, after the enactment of the AEDPA, the Act is appli-
cable to his petition.
Under the AEDPA, a federal court may grant a peti-
tion for writ of habeas corpus on a claim that the state
court heard on the merits in only three instances. First, if
the state court’s decision was contrary to a decision of the
Supreme Court or resulted in “a conclusion opposite that
of a decision by [the Supreme Court] on a question of law
or ... differently than a decision by [the Supreme Court]
on a set of materially indistinguishable facts.” Williams v.
Taylor, 529 U.S. 362, 412-13 (2000); 28 U.S.C. § 2254(d)(1).
Second, where the state court uses the correct governing
legal principle as set forth by the Supreme Court but
unreasonably applies that principle to the facts of the
prisoner’s case, the federal court may grant a petition for
writ of habeas corpus. Williams, 529 U.S. at 412-13; 28
U.S.C. § 2254(d)(1). “Unreasonable” must be distinguished
from “incorrect,” as the application of law to the facts must
be more than incorrect in the federal court’s independent
view, it must also be unreasonable. Williams, 529 U.S. at
410-11. Finally, a petition may be granted where the
adjudication of the claim in state court resulted in a
decision that was based on an unreasonable determination
of the facts in light of the evidence presented in the State
court proceeding.” 28 U.S.C. § 2254(d)(2). In addition, the
F10
state court’s factual determinations must be presumed
correct, and the federal court must accept all factual
findings made by the state court unless the petitioner can
rebut “the presumption of correctness by clear and con-
vincing evidence.” 28 U.S.C. § 2254(e)(1).
When analyzing a claim that there has been an
unreasonable application of federal law, the court must
first consider whether the state court erred; only after
making that determination may the court then consider
whether any error involved an unreasonable application of
controlling law within the meaning of § 2254(d). Van Tran
v. Lindsey, 212 F.3d 1143, 1155 (9th Cir.), cert denied, 121
S. Ct. 340 (2000).
b. Procedural Default
Respondent contends the first five claims‘ raised in
the instant petition are procedurally barred from federal
review. Petitioner presented these claims in a second
habeas corpus petition to the California Supreme Court on
April 9, 1999. The California Supreme Court denied the
petition citing In re Clark, 5 Cal. 4th 750 (1993); In re
Robbins, 18 Cal 4th 770, 780 (1998); and In re Waltreus, 62
Cal.2d 218, 225 (1965).
: * Respondent discusses only five of the first six claims, consolidat-
ing claims two, three, and four: (2) constructive denial of effective
assistance of counsel through failure to develop a candid attorney-client
relationship; (3) conflict of interest based on violation of attorney-client
privilege; and (4) conflict of interest because of Counsel’s relationship
with the Fresno District Attorney’s Office and Police Department.
F1l1
There are limitations as to when a federal court
should invoke procedural default and refuse to evaluate
the merits of a claim because the petitioner violated a
state’s procedural rules. First, procedural default can only
block a claim in federal court if the state court “clearly and
expressly states that its judgment rests on a state proce-
dural bar.” Harris v. Reed, 489 U.S. 255, 263 (1989). For
California Supreme Court decisions, this means the court
must specifically have stated that it denied relief on a
procedural ground. Yist v. Nunnemaker, 501 U.S. 797, 803
(1991); Acosta-Huerta v. Estelle, 7 F.3d 139, 142 (9th Cir.
1993); Hunter v. Aispuro, 982 F.2d 344, 347-48 (9th Cir.
1991). If the California Supreme Court denies a peti-
tioner’s claims without any comment or citation, the
federal court must consider it a decision on the merits.
Hunter, 982 F.2d at 347-48.
Second, a federal court may only impose a procedural
bar on claims if the procedural rule that the state used to
deny relief is “firmly established and regularly followed.”
O'Dell v Thompson, 502 U.S. 995, 998 (1991) (statement of
Blackmun joined by Stevens and O’Connor respecting the
denial of certiorari); Ford v. Georgia, 498 U.S. 411, 423-24
(1991); James v. Kentucky, 466 U.S. 341, 348-51 (1984);
Fields v. Calderon, 125 F.3d 757, 760 (9th Cir. 1997);
Calderon v. United States Dist. Court (Bean), 96 F.3d 112,
129 (9th Cir. 1996).
A federal court may still consider a procedurally
defaulted claim if the petitioner can demonstrate (1) cause
for the default and actual prejudice resulting from the
alleged violation of federal law, or (2) a fundamental
miscarriage of justice. Harris, 489 U.S. at 262. In the
instant petition, the Court declines to address the proce-
dural default argument and will analyze the merits of the
petition.
F12
DISCUSSION
I. INEFFECTIVE ASSISTANCE OF COUNSEL
Petitioner’s first eight claims are based on ineffective
assistance of counsel. A claim ‘of ineffective assistance of
counsel constitutes a claim of denial of the Sixth Amend-
ment right to counsel, which guarantees not only assis-
tance, but effective assistance of counsel. Strickland uv.
Washington, 466 U.S. 668, 686 (1984). The standard for
judging any claim of ineffectiveness must be whether
counsel’s actions so undermined the proper function of the
adversarial process that the trial cannot be relied upon as
having produced a just result. Id.
In a petition for writ of habeas corpus alleging ineffec-
tive assistance of counsel, the court must consider two
factors. First, the Petitioner must show that counsel’s
performance was deficient, requiring a showing that
counsel made errors so serious that he or she was not
functioning as the “counsel” guaranteed by the Sixth
Amendment. Strickland, 466 U.S. at 687. The Petitioner
must show that counsel’s representation fell below an
objective standard of reasonableness. Jd. at 688. The
Petitioner must identify counsel’s alleged acts or omissions
that were not the result of reasonable professional judg-
ment considering the circumstances. Id.; see also United
States v. Quintero-Barraza, 78 F.3d 1344, 1348 (9th Cir.
1995). Judicial scrutiny of counsel’s performance is highly
deferential. A court indulges a strong presumption that
counsel’s conduct falls within the wide range of reasonable
professional assistance. Strickland, 466 U.S. at 689;
Sanders y. Ratelle, 21 F.3d 1446, 1456 (9th Cir.1994).
Second, Petitioner must show that counsel’s errors
were so egregious as to deprive petitioner of a fair trial,
F13
one whose result is reliable. Strickland, 466 U.S. at 687.
Petitioner must establish that there is “a reasonable
probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to under-
mine confidence in the outcome.” Id. at 694; see also
Williams, 529 U.S. at 416-17; Jackson v. Calderon, 211
F.3d 1148, 1154 (9th Cir. 2000); Laboa v. Calderon, 224
F.3d 972, 980-81 (9th Cir. 2000). A court need not deter-
mine whether counsel’s performance was deficient before
examining the prejudice suffered by the petitioner as a
result of the alleged deficiencies. Strickland, 466 U.S. at
697. Since it is necessary to prove prejudice, any deficiency
that does not result in prejudice must necessarily fail.
A. Attorney-Client Privilege
Petitioner alleges ineffective assistance of counsel
based on Trial Counsel’s alleged breach of the attorney-
client privilege by revealing, or causing others to reveal,
information that was the subject of confidential communi-
cation between Petitioner and Trial Counsel. Petitioner
asserts that Trial Counsel had an affirmative duty to
advise him of the nature and scope of the attorney-client
privilege, to inform him regarding the legal ramification of
every disclosure, and to seek Petitioner’s consent prior to
each disclosure, which he failed to do.
The attorney-client privilege is an evidentiary privi-
lege that provides for a client to refuse to disclose, and to
prevent another from disclosing, a confidential communi-
cation between the client and his/her lawyer. Cal. Evid.
Code § 954; Fed. R. Evid. 501. This privilege applies to
communications which are intended to be confidential,
F14
between an attorney client, for the purpose of obtaining
legal assistance. Fisher v. United States, 425 U.S. 391, 403
(1976); see also, Cal. Evid. Code § 952, and § 953; People v.
Gionis, 9 Cal. 4th 1196, 1207-8 (1995).
The purpose of the evidentiary privilege is to safe-
guard the confidential relationship between a client and
counsel so as to promote full and open disclosure of facts
and tactics surrounding the case. People v. Flores, 71 Cal.
App. 3d 559, 563 (1977). Without the ability to make a full
disclosure of the facts to the attorney, the client risks
inadequate representation: “‘Unless he makes known to
the lawyer all the facts, the advice which follows will be
useless, if not misleading.... ’” City & County of San
Francisco v. Superior Court, 37 Cal. 2d 227, 235 (1951).
. Thus, by encouraging complete disclosure, the attorney-
client privilege enables the attorney to provide suitable
legal representation. Jd.
The privilege may be waived by the client who, with-
out coercion, consents to disclosure of the privileged
communication. Cal. Evid. Code §912(a). Consent to
disclosure is manifested by any statement, or other con-
duct, of the holder of the privilege indicating consent to
the disclosure, including failure to claim the privilege in
any proceeding in which the holder has the legal standing
and opportunity to claim the privilege. Jd.
When a party asserts the attorney-client privilege, it
is incumbent upon that party to prove The preliminary
fact that a privilege exists. Ralls v. United States, 52 F.3d
223, 225 (9th Cir. 1995); see also State Farm Fire & Cas.
Co. v. Superior Court, 54 Cal. App. 4th 625, 639 (1997).
The party claiming privilege has the burden to show that
the communication sought to be suppressed falls within
F15
the terms of the statute. D.I. Chadbourne, Inc. v. Superior
Court, 60 Cal.2d 723, 729 (1964). Thus to show a violation
of attorney-client privilege, Petitioner must show that the
communications were confidential, made by a client, to an
attorney, for the purpose of obtaining legal assistance or
advice.
The attorney-client privilege is an evidentiary rule
and not a constitutional right. See Maness v. Meyers. 419
U.S. 449, 466 n.15 (1975); Clutchette v. Rushen. 770 F.2d
1469, 1471 (9th Cir. 1985). In the instant petition, Peti-
tioner alleges that Trial Counsel violated the attorney-
client privilege and thus violated the Sixth Amendment
right to counsel. However, while a violation of attorney-
client privilege, if proven, may be a violation of ethical
canons, it is not prima facie evidence of unreasonable or
incompetent assistance of counsel.’ In order to make a
successful ineffective assistance of counsel claim, Peti-
tioner must show that the revelation of reformation
covered by attorney-client privilege was outside the broad
scope of reasonable and competent behavior and that these
errors resulted in prejudice to Petitioner’s defense.
1. Mismanagement of Information Covered by Attor-
ney-Client Privilege.
Petitioner’s first claim centers on the statements
made by Petitioner to Jerry and Kathy Hamilton on the
* Petitioner does not cite, nor can this Court find any statement of
law which holds that counsel has an affirmative duty to inform his
client of the protections of attorney-client privilege before seeking
consent to disclose the privileged information.
F16
evening of January 11, and statements made to his attor-
ney on the morning of January 12, 1993. This claim is set
out in four sub-claims: (a) disclosure of the location of
Susan’s body by Trial Counsel; (b) statements by Jerry
Hamilton regarding privileged communications; (c) ques-
tions regarding Petitioner’s state of mind leading up to his
testimony; and (d) disclosure of privileged statements by
Petitioner to his parents the night before his meeting with
his attorney.
On the evening of January 11, 1993, Petitioner had
dinner with his mother and step-father, Kathy and Jerry
Hamilton. Jerry Hamilton testified that at this dinner
Petitioner told him and his wife that Petitioner had found
Susan in the garage, where she had apparently committed
suicide. (R.T. at 117). Mr. Hamilton stated that Petitioner
said that he and Susan had had a fight and he had left the
house with his son. When he returned Petitioner opened
the garage door, found Susan on the floor with a cord
around her neck, and he had then closed the garage door.
(R.T. at 117-18).
Reed Harris, Petitioner’s AA sponsor, testified that on
the night of January 11, 1993, at approximately 10 p.m.
(the same night as the dinner with the Hamilton’s) Peti-
tioner called and asked to meet with him at the Hamiltons’
home. (R.T. at 162-63). After he arrived they (Jerry Hamil-
ton, Petitioner, and Reed Harris) drove to Petitioner’s
home. (R.T. at 163). Harris testified that once in his own
home, Petitioner told him that Susan had found his fourth
step ,-aperwork, they got into an argument, Petitioner left
the house, and when he returned he found his wife dead
on the floor of the garage. (R.T. at 164). Petitioner told
Harris that Susan had committed suicide. (R.T. at 164).
Harris also testified that Petitioner told him that rather
a Om sath it
beet o ow
F17
than call the police Petitioner felt if he hid the body people
would forget. (R.T. at 165).
The next morning, January 12, 1993, Petitioner and
his step-father, met with Trial Counsel for the first time.
During this meeting Petitioner told Trial Counsel that his
wife’s body was in the spare bedroom/computer room of
Petitioner’s home. Petitioner and/or his step-father also
told Trial Counsel that the police were currently searching
Petitioner’s home. (Kurtz Decl. p.2, Hamilton Decl. p.2).
Petitioner states that Trial Counsel called Petitioner’s
home twice during that meeting and spoke with police
officers (Kurtz Decl. p. 2), and during the second call put
his hand over the phone and asked Petitioner “Should we
tell them?” Trial Counsel then told the officers searching
the home where the body was located. (Hamilton Decl. pp.
2-3). Jerry Hamilton states that he doesn’t remember how
Petitioner responded but that Petitioner did not object.
(Hamilton Decl. p.3).
a. Disclosure of Statements by Petitioner to his
Parents.°
Petitioner alleges that the statements made to his
parents at dinner on January 11, 1993, the night before he
met with his attorney, are covered by attorney-client
privilege and that Trial Counsel erred by failing to assert
that privilege regarding the testimony of Jerry and Kathy
Hamilton. Petitioner states in his declaration that prior to
the dinner with his mother and step-father he had re-
tained counsel but was unable to disclose the facts of his
* This sub-claim appears as Petitioner’s “1(d) .”
F18
case because he was so depressed, verging on suicidal.
Petitioner felt that only if one or both of his parents came
to the meeting would he be able to tell Trial Counsel the
necessary facts. Thus, Petitioner concludes his statements
at the January 11th dinner were “reasonably necessary for
the transmission of the information [to the lawyer] or the
accomplishment of the purpose for which the lawyer [was]
consulted” under California Evidence Code § 952. (2AP at
27-28).
Petitioner cites Insurance Co. of North America uv.
Superior Court, 108 Cal. App. 3d 758, 771 (1980), to
support his proposition that privilege protects communica-
tions to parties other than counsel and client. (2AP at 27).
Petitioner’s reasoning is in error. In Insurance Co. of North
America, the court was asked to decide if prejudice was
waived by the presence of closely affiliated parties during
an attorney-client meeting. Jd. at 762. Here, the question
is not whether the presence or absence of Jerry and Kathy
Hamilton destroyed privilege but whether the statements
made to them, the night before his meeting with Trial
Counsel, are covered by the attorney-client privilege.
California case law upholding the extension of the
privilege to communications made to parents and “for the
transmission of information” focuses on the needs of minor
children, where the parent is acting under the direction of
counsel. Jesse Richard De Los Santos v. The Superior
Court of Los Angeles County, 27 Cal. 3d 677, 683-84 (1980)
(holding that the parent, of minor child, obtaining infor-
mation for the purpose of transmitting to attorney may
assert privilege). Petitioner is not a minor, and he was not
acting pursuant to the advice or direction of counsel at the
January 11th dinner, therefore Petitioner’s statements to
his parents at dinner do not fall within the statutory
St Ui AAS
tee, enero mem:
F19
scheme. As they cannot survive the privileged communica-
tion analysis, they are non-privileged statements. Further
they are the admissions of a party and are therefore
exempt from the hearsay rule and would be admissible in
court. Cal. Evid. Code § 1220.
Even if these communications were privileged, Peti-
tioner waived the privilege by disclosing the same infor-
mation to Reed Harris. Kaiser Foundation Hosp. v.
Superior Court, 66 Cal. App. 1217, 1226 (1998) (citing Cal.
Evid. Code § 912(a)). Reed Harris testified to these state-
ments at trial and Petitioner does not claim that Harris’
testimony was privileged in any way. Thus, by revealing
privileged information to a third party Petitioner waived
any privilege that may have existed.
b. Disclosure of the Location of Body of the Vic-
tim.’
Petitioner alleges that Trial Counsel erred by calling
the police and telling them the location of his wife’s body.
Petitioner argues that he was not advised that he had the
right to prevent Trial Counsel from disclosing this infor-
mation. Petitioner further alleges that he did not actually
consent to this disclosure as he made no response when
Counsel asked if they should tell the police where to find
the body. (Kurtz Decl. p.2).
A defendant cannot prevail on an ineffective assis-
tance of counsel claim for counsel’s action that occurred
prior to when the constitutional right to counsel attaches.
" This sub-claim appears as Petitioner’s “1(a).”
F20
Wainright v. Torna, 455 U.S. 586, 587-88 (1982) (holding
no claim where petitioner had no constitutional right to
counsel at a state post-conviction stage); Claudio v. Scully,
982 F.2d 798, 801-2 (2d Cir. 1992) (finding no claim where
counsel advised surrender and confession, before advising
client of the possible charges or defenses to murder). The
protections of the Sixth Amendment right to counsel are
not triggered by the mere existence of an attorney-client
relationship, but rather by the initiation of adversarial
judicial proceedings. Maine v. Moulton, 474 U.S. 159
(1985); see also Moran v. Burbine, 475 U.S. 412, 430 (1986)
(“by its very terms [the Sixth Amendment] is applicable
only when the Government’s role shifts from investigation
to accusation”). The Sixth Amendment right to counsel
attaches only at or after the initiation of adversary judicial
proceedings against the defendant. United States uv.
Gouveia. 467 U.S. 180, 187 (1984). The disclosure of the
location of Susan’s body took place before Petitioner was
arrested and before formal charges had been filed. Peti-
tioner was under investigation but was not subject to
adversarial judicial proceedings. Therefore, the Sixth
Amendment right to counsel had not yet attached, and
there can be no ineffective assistance of counsel claim
based on these facts.
Even if the Sixth Amendment right to counsel had
attached, Petitioner has not shown that Trial Counsel’s
actions where either unreasonable or unethical. The
declaration of Jerry Hamilton, provided by Petitioner,
states that Trial Counsel did ask if they should tell the
police where the body was located. Petitioner was clearly
presented with the opportunity to say “no”. Even if he was
ignorant of the law, he was asked what he wanted to do.
F21
Presented with this choice he did not object to the disclo-
sure. These actions can reasonably be interpreted as
consent to a waiver of attorney-client privilege.
Finally, Petitioner cannot and has not shown preju-
dice. Even if Trial Counsel had not disclosed the location of
the body to the police, as the police were in the process of
searching the house, and they would have found the body
anyway. Finding the body in the house would have allowed
them to link Petitioner to the body. Further, Petitioner had
already told his mother, step-father and AA sponsor Reed
Harris that he knew his wife was dead. He told Reed
Harris that he had hidden the body. Petitioner had already
disclosed to non-privileged sources that he knew (inferen-
tially) where the body was located. Therefore, Trial Coun-
sel’s disclosure of the location of the body was non-
prejudicial.
c. Testimony by Jerry Hamilton Regarding Privi-
leged Communications’.
Petitioner contends that the testimony by his step-
father Jerry Hamilton during the preliminary hearing and
trial revealed the details of the meeting between himself
and his counsel. Petitioner contends that Counsel erred by
not claiming attorney-client privilege at either time to
prevent this testimony.
* This sub-claim appears as Petitioner's “1(b).”
In this claim Petitioner levels allegations of violation of attorney-
client privilege at both the preliminary hearing and the trial. The Court
has only pages 20-25 of the clerk’s transcript. As the statements made
at the preliminary hearing are not themselves in dispute, the Court will
proceed without further review of that record.
F22
Jerry Hamilton testified at the preliminary hearing
that at dinner on the night of January 11, Petitioner told
him and his wife that Susan Kurtz was dead. (CT at 22).
He also testified that this was essentially the same story
that Petitioner had told his attorney on the morning of
January 12, 1993. (CT at 23-24). Petitioner contends that
prior to Trial Counsel’s cross-examination, all that Hamil-
ton had testified to was that Petitioner had said he knew
his wife was dead. It was Trial Counsel’s questions to
Hamilton which brought before the court the story of
suicide and Petitioner’s knowledge of the location of the
body.
Accepting, without finding, that this was not an
objectively reasonable performance on the part of Trial
Counsel, Petitioner cannot show prejudice. The police had
found Susan’s body hidden in a closet in Petitioner’s
house. They had a pathologist’s testimony stating that the
evidence was inconsistent with suicide. They also had
Jerry Hamilton’s testimony regarding the non-privileged
statements by Petitioner that he knew his wife was dead,
and he had found her body in the garage. As Respondent
points out, the purpose of a preliminary hearing is only to
determine whether there is probable cause to bring
charges. Absent the contested testimony, the judge could
still have reasonably found probable cause on these facts.
Thus no prejudice can be found.
At trial Hamilton testified as a witness for the prose-
cution. During cross-examination by Trial Counsel, Hamil-
ton said that on January 12th, while present at a meeting
between Petitioner and Trial Counsel, he heard Petitioner
tell Trial Counsel where Susan’s body was located. He
then saw Trial Counsel call Petitioner’s home, and heard
Pa
aa OO tal aie Ro acct
~ Ea ONE TNS NINA, SEEN NORE RE ARTI ais ae enn th Meee et
F23
him tell officers to look in the computer/bedroom closet.
(RT at 124-25). On redirect the prosecutor questioned
Hamilton further about what was said during the meeting
between Petitioner and Trial Counsel. (RT at 134). Hamil-
ton testified that Petitioner told Trial Counsel that Susan
had committed suicide. Id.
Petitioner states that this was a violation of the
attorney-client privilege and resulted in ineffective assis-
tance of counsel. Again, accepting, without finding, that
Trial Counsel’s performance was objectively unreasonable,
Petitioner cannot show prejudice. Petitioner alleges that
prejudice results because his story regarding Susan
committing suicide did not need to come out. Had Trial
Counsel effectively limited the scope of Jerry Hamilton’s
testimony to exclude the privileged material, Petitioner
contends, he could simply have told his story regarding the
physical confrontation between himself and Susan Kurtz.
Petitioner’s argument is flawed. He had already told his
mother, step-father and Reed Harris that he had found
Susan dead in the garage from apparent suicide. All of
those communications were outside the scope of attorney-
client privilege. Petitioner’s lies would still have come
before the jury through these three witnesses.
d. Testimony regarding Petitioner’s state of
mind leading up to trial testimony’
Petitioner alleges that Trial Counsel farther erred by
allowing Petitioner to testify about the circumstances
leading up to his testimony at trial. At trial Petitioner
* This sub-claim appears as Petitioner’s “1(c).”
F24
testified that it was a physical struggle and not suicide
which caused Susan’s death. Petitioner, in response to
Trial counsel’s questioning, testified that his current
testimony differed from his previous statements to his
friends and family because Trial Counsel told him his
story of Susan’s suicide didn’t fit with the facts uncovered
prior to trial. Trial counsel also asked Petitioner if he had
lied to his attorney at their initial meeting. Petitioner
contends that these questions and the testimony they
elicited were privileged information.
Petitioner is correct that the substance of these
statements were privileged communications. However, by
testifying about these statements Petitioner tacitly, if not
expressly, consented to waive the privilege. It was Peti-
tioner’s right and decision to take the stand, and he makes
no allegations of coercion concerning this choice.
“A fair assessment of attorney performance requires
that every effort be made to eliminate the distorting
effects of hindsight, to reconstruct the circumstances of
counsel’s challenged conduct, and to evaluate the conduct
from counsel’s perspective at the time.” Strickland, 466
U.S. at 689. Petitioner’s allegations call into question the
underlying theory of Trial Counsel’s defense case on
Petitioner’s behalf. The initial theory of the defense case,
based on the information provided by Petitioner, was that
Petitioner was not responsible for Susan’s death but
rather she had killed herself and that Petitioner’s feelings
of guilt and trauma had prevented him from notifying the
police immediately. At trial the theory changed, probably,
as Petitioner points out, because the pathologist’s testi-
mony at the preliminary hearing ruled out suicide. The
defense theory was that, suffering from Post Traumatic
Stress Disorder, Petitioner was unable to admit the truth
—E————
F25
to himself or the authorities, and that now he would tell
everyone the truth. As part of this defense, Trial Counsel
put all of the lies on the table to lend credibility to this
“clean breast” theory. This included Petitioner’s inability
to admit even to his own attorney what had really hap-
pened. Counsel’s approach when viewed piece by piece
may seem unorthodox but not beyond the scope of reason-
able or competent given the facts of the case and the
information provided, piece meal, by Petitioner to his
Counsel. As these actions were not unreasonable, the
Court need not reach the issue of prejudice.
In sum, Petitioner’s first claim of ineffective assis-
tance of counsel based on mismanagement of information
covered by the attorney-client privilege must fail because:
(1) statements to Petitioner’s parents were not covered by
the attorney-client privilege; (2) the Sixth Amendment
right to counsel had not yet attached when Trial Counsel
revealed the location of Susan’s body, nor were his actions
prejudicial; (3) Jerry Hamilton’s testimony was not preju-
dicial to the defense; and (4) Petitioner waived the attor-
ney-client privilege with regard to his own testimony.
2. __ Violation of Attorney-Client Privilege Resulting
in Failure to Present Exculpatory Evidence Re-
garding Petitioner’s State of Mind Following
Murder.
Petitioner alleges that Trial Counsel’s abuse of the
attorney-client privilege had a chilling effect upon Peti-
tioner’s ability to trust and to confide in him, which
resulted in constructive denial of effective assistance of
counsel. Petitioner argues that he is constitutionally
entitled to an attorney-client relationship in which he can
fully disclose the facts of his case in order to seek legal
F26
advice. (ZAP at 34). Petitioner states that he committed
certain financial crimes, and that his fear of these crimes
being discovered prevented him from calling the police
when Susan died. (2AP at 32). Petitioner did not share this
information with Trial Counsel because the disclosure of
the location of his wife’s body and his step-father’s testi-
mony at the preliminary hearing led Petitioner to distrust
him. (2AP at 33-34). Thus, Petitioner argues, Trial Coun-
sel’s alleged violation of the attorney client privilege
resulted in complete denial of Petitioner’s Sixth Amend-
ment right and prejudice should be presumed.
Insofar as this claim rises or falls upon Petitioner’s
prior arguments that there has been a violation of the
attorney-client privilege, this claim fails because the Court
has found no violation of the attorney-client privilege. The
Court otherwise finds the substance of Petitioner’s argu-
ment to be without merit.
The Sixth Amendment does not guarantee a “mean-
ingful relationship” between an accused and his publicly
appointed counsel, but merely a right to competent coun-
sel. Morris v. Slappy, 461 U.S. 1, 14 (1983). Individuals
who can afford to retain counsel have a qualified right to
obtain counsel of their choice, Releford v. United States,
288 F.2d 298, 301 (9th Cir. 1961), and privately retained
attorneys are held to the same standard as public defend-
ers regarding a criminal defendant’s Sixth Amendment
right to effective assistance of counsel. Cuyler v. Sullivan,
446 U.S. 336. 334-35 (1980). Thus, Petitioner is in error
that he has a constitutional right to a relationship of trust
and candor with his attorney, rather his constitutional
right is to competent representation, consequently preju-
dice cannot be presumed.
F27
In the alternative, failure to request a change or
substitution in counsel before, or during trial, is a waiver
of any claim of ineffective assistance of counsel based on
the breakdown of the attorney-client relationship. Thomas
v. Wainwright, 767 F.2d 738, 743 (11th Cir. 1985). In the
instant case, Petitioner claims to have been alarmed at
Counsel’s trial tactics (i.e., disclosure of information that
Petitioner deemed confidential) as early as January 12,
1993, when Trial counsel told the police where Susan’s
body was, and as late as the date of the preliminary
hearing. Petitioner had through late August of 1993 in
which either to obtain new counsel or, at the very least, to
notify the trial court that Petitioner was unhappy with
counsel and needed time to obtain new counsel. Petitioner
failed to take any action to alert the court or Counsel of his
feelings. Therefore, this claim must fail.
B. Conflict of Interest Standard
Petitioner’s claims three and four allege ineffective
assistance of counsel based on conflict of interest. First,
Petitioner claims that Trial Counsel’s mishandling of
privileged communications exposed him to a potential
malpractice action, thus creating a conflict of interest.
Second, Petitioner claims that Trial Counsel’s ongoing
relationship with the Fresno Police Department and the
District Attorney’s Office created a conflict of interest,
thereby affecting his ability to defend Petitioner’s interests
effectively. (2AP at 38-50).
Under the Sixth Amendment, a criminal defendant
has the right to be represented by counsel whose loyalties
are undivided. Wood v. Georgia, 450 U.S. 261, 271 (1981);
Mannhalt v. Reed, 847 F.2d 576, 579 (9th Cir. 1988). “To
F28
establish a Sixth Amendment violation based on a conflict
of interest, a defendant must show (1) that counsel ac-
tively represented conflicting interests, and (2) that an
actual conflict of interest adversely affected his lawyer’s
performance.” Mannhalt, 847 F.2d at 579 (citing Cuyler v.
Sullivan, 446 U.S. 335, 350 (1980)). Actual conflict must
be proven “through a factual showing on the record.”
Morris v. California, 966 F.2d 448, 455 (9th Cir. 1992). To
show adverse effect, Petitioner “need only show that some
effect on counsel’s handling of particular aspects of the
trial was ‘likely.’ United States v. Miskinis, 966 F.2d 1263,
1268 (9th Cir. 1992) (citing Mannhalt 847 F.2d at 583).
Adverse effect is not the same as showing prejudice, but
rather requires factual assertions regarding particular
aspects of the trial that may have been handled differ-
ently. Id. Both Mannhalt and Miskinis pointed to specific
areas of defense that could have been pursued but weren’t,
presumably because of the attorney's conflict of interest.
Mannhalt, 847 F.2d at 581; Miskinis, 966 F.2d at 1268.
Therefore, a petitioner must show that an actual
conflict existed and point to specific areas where that
conflict may have affected counsel’s representation.
1. Trial Counsel had Conflict of Interest Due to Mis-
management of Attorney-Client Privilege Com-
munications.
Petitioner alleges that Counsel’s violation of the
attorney-client privilege” resulted in an actual conflict of
Here Petitioner refers to errors alleged in ground I: disclosure of
the location of the body; Jerry Hamilton’s testimony regarding the
(Continued on following page)
ee ee ae ae eee
De be SDA TAAL RO PE AED et at Ae
fh On eaten nes
F29
interest which deprived Petitioner of effective assistance of
counsel. Petitioner contends that had he been informed of
the nature and scope of attorney-client privilege, he would
never have waived the privilege. Petitioner contends that
Trial Counsel’s violation of attorney-client privilege ex-
posed Counsel to a potential malpractice suit, negative
publicity, and loss of client fees, all of which Trial Counsel
must have known. (2AP at 38-39). This threat to Trial
Counsel created a conflict of interest which impaired
Counsel’s performance by preventing him from disclosing
to Petitioner the scope of the attorney-client privilege and
requiring continued violation of the privilege."
Petitioner cites two cases for the proposition that
where malpractice is alleged, conflict of interest will be
found, Lopez v. Sculley, 58 F.3d 38, 41 (2d Cir. 1995) and
United States v. Shorter 54 F.3d 1248, 1252-53 (7th Cir.
1995). However, these cases are factually distinguishable
from the present case. In both of these cases the defen-
dant/client alleged ineffective assistance of counsel or acts
which constituted malpractice during the course of their
criminal trial or sentencing while counsel actively repre-
sented them. These accusations had the double effect of
putting their respective attorneys in the position of deny-
ing the charges, contradicting their clients and violating
their duty of loyalty, thus creating an actual (as opposed to
attorney-client meeting of January 12; Jerry and Kathy Hamilton’s
testimony about communications during the dinner on January 11; and
Petitioner’s own testimony regarding communications between himself
and counsel. (2AP at 40).
" This Court initially notes that insofar as the Court has already
found no violation of the attorney-client privilege, this claim accord-
ingly has no merit.
F30
potential) conflict. Lopez, 58 F.3d at 40-41; see also Shorter,
54 F.3d at 1252-53. In the present case the Petitioner did
not accuse his counsel of malpractice or ineffective assis-
tance until after the trial and sentencing were complete.
Tous, Petitioner has at most established a potential
conflict of interest between himself and counsel.
Where only a potential conflict of interest exists,
Petitioner must show that counsel’s fictions were unrea-
sonable and prejudicial to his defense. Strickland, 466
U.S. at 692 (stating that prejudice is presumed only where
there is actual conflict of interest). Without a showing of
prejudice, a “theoretical” or “potential” conflict is insuffi-
cient to constitute actual conflict; instead, Trial Counsel
must have actively represented conflicting interests. Bonin
v. Calderon, 59 F.3d 815, 827 (9th Cir. 1995). Petitioner
has not made such.a showing, and thus this claim must
fail.
2. Conflict of Interest on the Part of Trial Counsel
Due to Prior Favorable Treatment from Law En-
forcement.
Petitioner alleges that Trial Counsel’s performance
was impaired by actual conflict of interest caused by the
special treatment he received from the District Attorney’s
Office and the Fresno Police Department. Petitioner
contends that during his trial, Trial Counsel was negotiat-
ing for a consultant position for which he would be hired in
1995. Petitioner further contends that Trial Counsel was
beholden to the District Attorney’s Office and the Fresno
Police Department for favorable treatment that he had
mn A CS llth oS ert ie
F31
received and would continue to need because of his alco-
holism and penchant for drunk driving. (2AP at 41),”
Petitioner’s allegations at failure to disclose alleged
negotiations for future employment by Trial Counsel
constitutes actual conflict are in error. Mere acceptance of,
or application for, a job is not a per se conflict of interest.
United States v. Unruh, 855 F2d 1363, 1379 (9th Cir.
1987). United States v. Horton, 845 F.2d 1414, 1419 (7th
Cir. 1998) (holding that serious candidacy for a position
with the State will not create a conflict of interest as a
matter of law). Nor will the failure of counsel to notify his
or her client that he or she is being considered for such a
position result in actual conflict as a matter of law. Horton,
845 F.2d at 1419. Petitioner must show that “the defense
attorney was required to make a choice advancing his own
interest to the detriment of his client’s interests.” Jd.
Here, Trial Counsel did not take a position with the
District Attorney’s Office until two (2) years after the close
of Petitioner’s case and after he had retired from private
practice. Further, the position involved Trial Counsel
instructing new attorneys on trial techniques, not actually
advocating for the prosecution. (2AP Ex. 7 at 1). Thus, this
fails to meet the factual elements of the cases Petitioner
cites, and he fails to establish more than a potential
prejudice.
’ Similarly, allegations of Trial Counsel’s criminal
record and alleged special treatment alone are not enough
“ The Court notes that nowhere in the 2AP does Petitioner allege
Trial Counsel was under the influence of alcohol during any of the
Petitioner’s criminal proceedings.
F32
to demonstrate actual conflict. United States v. Baker, No.
99-56718, 2001 U.S. App. LEXIS 5620, at *9 (9th Cir. April
5, 2001) (holding that bare allegation of conflict based on
attorney's cooperation and plea on unrelated charges in
another federal district court insufficient for actual conflict
analysis). Petitioner argues that his case is analogous to
Mannhalt, in which counsel representing a client charged
with robbery and possession of stolen foods was accused by
a prosecutorial witness (and accomplice) of receiving
stolen goods. Jd. at 578. In the instant case, Trial Counsel
had been arrested previously by the same agency, but was
not implicated personally in this case and was not facing
charges or investigation during the Petitioner’s criminal
proceedings. (2AP, Ex. 7 at 2-6). Petitioner has not shown
that Trial Counsel’s prior crimes put his interest in direct
conflict with Petitioner in this case. As Petitioner has
failed to establish that either of these allegations rise to
the level of an actual conflict, and he has failed to demon-
strate prejudice, this claim must fail.
C. Failure to Present Evidence to Rebut Motive Theory.
Petitioner alleges that Trial Counsel erred by failing
to present evidence to rebut the prosecution’s motive
theory. According to Petitioner, the prosecution argued
that Petitioner resented his wife for removing him from
the business checking account and feared losing his
business to her in a divorce proceeding. (2AP at 51). He
asserts that the only motive presented by the prosecution
was Petitioner’s alleged financial concerns. Petitioner
further alleges that but for Trial Counsel’s failure to rebut
the motive theory Petitioner would not have been con-
victed.
Pale ne Leta lt
A kl 2 a Rs YB.
+ @Rey Rane ee
F33
Petitioner contends that this motive could have and
should have been rebutted with evidence of his separate
property assets. Petitioner alleges that Trial Counsel could
have easily done away with any financial motive through
Petitioner’s accountant, who testified as a character
witness, and who could have also testified that Petitioner’s
separate property was significantly larger than his stake
in the community property and thus there was no finan-
cial incentive for him to kill his wife.’ Petitioner argues
that if this evidence had been presented, the prosecution’s
motive theory would have been destroyed. Petitioner
points out several witnesses who testified that in Decem-
ber 1992, Petitioner and Susan appeared happily recon-
ciled and looking forward to the birth of their second child.
(2AP at 52).
Petitioner’s prejudice argument rests on the fact that
the California Appellate Court determined that the motive
theory was the “lynch pin” of the prosecution’s case as to
determining that premeditation and deliberation for first
degree murder existed. (2AP at 57). Petitioner states that
he told Counsel about his accountant. Thus, it was Coun-
sel’s failure to investigate or tactical decision not to pre-
sent this evidence that must be evaluated as reasonable or
unreasonable. (2AP at 55).
Assuming, without deciding, that Trial Counsel's
failure to put on this evidence was outside the wide scope
of reasonable and competent representation, the Court
“ The Court notes Carl Campbell, Petitioner's CPA, did not
provide any representation as to the net worth of petitioner’s separate
property at the time of Susan’s death. See 2AP, Ex. 4 ( Campbell Dec!.).
F34
turns to prejudice. Review of the trial transcript reveals
that financial incentive was only a portion of the motive
presented by the prosecution. The prosecution’s case also
presented the theory that it was not just losing the money
and the business but losing the money and business again.
The prosecution established through questioning, and
Petitioner’s fourth step diary documents, that Petitioner’s
first wife sold his business and divorced him while he was
incarcerated for his second felony offense. (R.T. at 787,
788, 892; Fourth Step Diary at 5-6, 7). The prosecution’s
theory could reasonably be interpreted by the jury as
calling into question Petitioner’s ability to handle another
failure, the loss of his business a second time to a wife who
could no longer put up with his drug addiction.
There was also more at stake than just the business.
There was the possibility that the Petitioner would lose
custody of his son. Thus, even if Trial Counsel had pre-
sented evidence of Petitioner’s alleged financial independ-
ence, the jury could still find the prosecution’s motive
theory credible. As Petitioner has failed to show prejudice,
this claim must fail.
D. Failure to Present Evidence of Victim’s State of Mind
through Introduction of Her “Step Work” Diary.
Petitioner alleges that Trial Counsel erred in failing to
introduce Susan’s “Step Diary” as evidence of her state of
mind, which would corroborate his version of the physical
encounter which led to Susan’s death.
Petitioner testified at trial that Susan found his
“Fourth step” paperwork in which he admitted to sleeping
with prostitutes when he was using drugs. (R.T. at 699,
701). Petitioner stated that upon reading these confessions
Se
F35
Susan became very upset and wanted to talk with him.
(R.T. at 701-02). Petitioner refused to discuss it with her
the night she found the papers. (R.T. at 705). Petitioner
stated that the next day Susan was still very upset, she
followed him to the garage and wanted to talk with him,
and Petitioner again refused. (R.T. at 708). Back inside the
house Susan said “I don’t have time for you.” (R.T. at 712-
13). Petitioner thought she was speaking to their son and
told her not to take her anger out on the child. (R.T. at
713). Susan then told Petitioner he was “scum”. (R.T. at
714). Petitioner testified that this comment sparked a
physical confrontation, initiated by Susan. (R.T. at 715).
Petitioner stated that Susan was so violent and angry that
he was forced to try and restrain her by holding her
against the wall with a computer cable, which resulted in
her death by strangulation. (R.T at 722-744),
Petitioner argues that to corroborate his testimony
Trial Counsel should have offered Susan’s “Step Diary”
which she was completing for her work in Al-Anon. Peti-
tioner characterizes this “Step Diary” as verifying that
Susan was “primed to 80 nova” on him if she found out
that he had had intercourse with another woman. (2AP at
65).
Initially, Petitioner fails to address whether this
“Diary” would even be admissible. First, it is a hearsay
document. It would only be admissible under the state of
mind exception if it was relevant in time to the events
which took place on January 4, 1993. Cal. Evid. Code
§ 1250 (a); People v. Karis, 46 Cal. 3d 612, 637 (1988)
(holding state of mind evidence admissible unless the
circumstances in which tae statements were made, the
lapse of time, or other evidence suggests that the state of
mind was transitory and no longer existed at the time of
F36
the charged offense). This document is dated November 6,
1991, and October 3, 1992. This is a year to three months
prior to the event in question, and therefore not likely to
be deemed relevant in time. Trial Counsel’s failure to
make a futile motion does not constitute behavior outside
the scope of competency. James v. Borg, 24 F.3d 20, 26 (9th
Cir. 1994).
Petitioner has also failed to demonstrate that Trial
Counsel’s decision not to introduce this document into
evidence does not fall within the wide range of competent
and reasonable performance. As Petitioner admitted, read
in its entirety this document creates a picture of Susan as
a woman who was disappointed and disillusioned by the
reality of her marriage. Far from evidencing that she was
a powder keg of “repressed rage,” it shows that she also
took responsibility for the problems in her marriage.
Additionally, Trial Counsel may have chosen not to intro-
duce this document as there were damaging statements
about Petitioner. For example, Susan wrote: “I felt afraid
that I had to make love to him after he came home ...
because of the way he would act — mad, hostile, aggressive,
accusatory.” (Susan’s Step Diary at 3). Contrary to charac-
ter witness testimony at trial, this statement suggests
that Petitioner may have had a history of violence or
aggression towards his wife. Susan had also written: “(I]
just pretend that if he tells me he hasn’t slept with anyone
and that he used new needles that it will be O.K.” (Susan’s
Step Diary at 4). This suggests that she didn’t believe
Petitioner when he told her that he had never had inter-
course with other women.
Petitioner contends that these statements could have
been suppressed as inadmissible hearsay; however, under
California Evidence Code § 356, if a portion of a writing is
ee er gee en
F37
introduced, the opposing party may introduce any other
relevant part. Therefore, Trial Counsel could not introduce
any potentially corroborative portions of Susan’s “Step
Diary” without opening the door to the more damaging
remainder. Thus, his decision not to introduce this docu-
ment falls within the range of reasonable and competent
representation.
Petitioner has also failed to establish how not intro-
ducing this document creates prejudice. Petitioner states
in his argument that Trial Counsel’s attempts to show
Susan’s propensity for anger through examination of her
family were not successful, leaving only the testimony of
Petitioner’s step-father and himself. Petitioner points to
some passages in Susan’s “Step Diary” that he alleges
show this pent up rage, and concludes that failure to
introduce this evidence is prejudice. (2AP at 66). Petitioner
states that a key fact going to the need for this corrobora-
tive evidence is that the prosecution did not question
Susan’s finding of the “Fourth step” paperwork but rather
her reaction to it. The prosecution questioned why Susan
didn’t react with violence immediately upon finding the
document. Admission of her diary does not answer this
question.
Even if the jury believed every word of Petitioner’s
testimony regarding his wife’s anger, they could still have
found him guilty of first degree murder. It was Petitioner’s
actions in the face of Susan’s anger that led to his convic-
tion, not the actions of his wife. In the circumstances as
described by Petitioner, there appears to be no reason for
him not to have left the house. He testified that he was
being hit and kicked; he also said that it didn’t really hurt.
(R.T. at 719, 722). He stated that he was not in fear for his
life, but rather he was just trying to control his wife. (R.T.
F38
at 746, 784-85). The jury could reasonably have found that
holding a computer cord around someone’s head or neck is
highly likely to lead to strangulation and death. Addition-
ally, the jury could still have determined that during the
struggle Petitioner had the opportunity consciously to
choose between walking or running away from the house
and his upset wife or killing her.“ They could reasonably
have found that Petitioner’s actions following the murder
were evidence of his consciousness of guilt. Finally, they
could have found that Petitioner, based on his lies to
family, friends, and police officers, was not a credible
witness and therefore did not believe that this was an
accident.
As the decision not to introduce this document is
within the wide range of competent behavior and there
was no prejudice to the defense by failing to introduce it,
this claim must fail.
E. Failure to Search Wallet Resulting in Consideration
by Jury of Extrinsic Evidence.
Petitioner alleges extrinsic evidence, a receipt for an
AIDS/HIV blood test inside Susan’s wallet, was allowed to
reach the jury, resulting in violations of his Fifth Amend-
ment right to due process and his Sixth Amendment right
to effective assistance of counsel. Apparently, neither
Petitioner, Trial Counsel, nor the prosecution knew of the
HIV blood test receipt when the wallet was given to the
jury. Petitioner argues that finding this receipt led the jury
* Petitioner testified that during the struggle he could have gone
out the front door but chose not to. (R.T. at 797)
oe ela sa
F39
to believe that Susan knew of his infidelity prior to finding
his fourth step paperwork. Petitioner contends that
allowing this blood test receipt to reach the jury destroyed
his credibility, and that but for this receipt the jury would
have found his testimony credible and found him not
guilty of first degree murder. To support his argument,
Petitioner points to the length of jury deliberations and
their request to have his testimony read back in its en-
tirety, arguing these elements suggest that the decision
was a very close one. Petitioner argues that his credibility
was the determinative factor. (2AP at 73).
Susan’s wallet was found in the southeast bedroom of
Petitioner’s home. (R.T. at 296). The significance of the
wallet lies in the fact that it was missing (along with a
computer printer) from MacSource the night of her disap-
pearance, suggesting foul play. (R.T. at 45). When the
police searched defendant’s home, they found the missing
wallet. (R.T. at 296).
Petitioner presents this court with the declarations of
two jurors regarding the presence of the receipt in the jury
room and its effect on their deliberations. The admissibil-
ity of post-verdict juror testimony is controlled by Federal
Rule of Evidence 606(b): “[A] juror may not testify as to...
the effect of anything upon that or any other juror’s mind
or emotions as influencing the juror to assent to or dissent
from the verdict ... or concerning the juror’s mental
processes in connection therewith....” This rule applies
to petitions for writ of habeas corpus from state court
prisoners. See Fed. R. Evid. 1101(e).
Jurors may not impeach their own verdict. Tanner v.
United States, 483 U.S. 107, 117-127 (1987); Hard uv.
Burlington N. R.R., 870 F.2d 1454, 1460-1461 (9th Cir.
F40
1989). Accordingly, “evidence concerning a jury’s delibera-
tions or a juror’s reasoning is inadmissible to impeach a
verdict.” United States v. Rohrer, 708 F.2d 429, 434 (9th
Cir. 1983) (finding affidavits regarding jurors’ individual
or collective thought processes inadmissible under Rule
606(b)). Moreover, jurors “may not be questioned about the
deliberative process ... nor can such information be
considered by the trial or appellate courts.” United States
v. Bagnariol, 665 F.2d 877, 884-85 (9th Cir. 1981). Thus,
any juror declaration offered by Petitioner to demonstrate
the effect that the receipt had on their determination of
guilt or innocence may not be considered as evidence by
this Court. These declarations may only be considered for
the purpose of establishing that the receipt was in fact
found by the jury.
Petitioner first argues, by analogy to Eslaminia v.
White, 136 F.3d 1234 (9th Cir. 1998), that the admission of
this HIV/AIDS receipt is extrinsic evidence. Consideration
of evidence not admitted at trial violates the petitioner’s
rights to confrontation, cross-examination, and effective
assistance of counsel. Jd. at 1237. In habeas corpus review,
the harmless error standard applies to the use of such
evidence by the jury. “[A]n error requires reversal only if it
had substantial and injurious effect or influence in deter-
mining the jury’s verdict.” Id. (citing Brecht v. Abraham-
son, 507 U.S. 619, 631 (1993)).
Petitioner contends that consideration of this docu-
ment had a substantial influence on the jury’s determina-
tion of the verdict. Petitioner’s entire defense rested on the
fact that Susan’s death was the result of a physical con-
frontation sparked by her discovery of his infidelities.
Petitioner points out that twice he testified that Susan did
not know about his infidelities before the night she found
OO ee ee
F41
the fourth step notes. (2AP at 71). He also notes that if the
jury found his testimony credible, no witness for the
prosecution could contradict his story. (2AP at 72). There-
fore, he concludes, the jury must have interpreted his
receipt to mean that Susan knew of petitioner’s infideli-
ties, and that destroyed his credibility which led them to
convict.
What Petitioner fails to acknowledge is that he had
told his wife he was an intravenous drug user. The sim-
plest explanation for the blood test was that Susan sought
the test because of his behavior. The jury therefore did not
need to infer that she knew of his contact with prostitutes.
Alternatively, Petitioner testified that while Susan knew
most of what was in his fourth step diary, she just didn’t
know the specifics. (R.T. at 793). The jury could therefore
have determined that based on her suspicions she decided
to get tested. This would have been consistent with the
evidence that Petitioner presented at trial. Thus, exposure
of the jury to this extrinsic evidence did not necessarily
incriminate Petitioner or unduly influence their determi-
nation of guilt or innocence.
As discussed previously, even if the jury believed
Petitioner’s testimony that he was only responding in kind
to his wife’s rage, the jury could still have found him
guilty. See discussion Claim D supra. Therefore, considera-
tion of this evidence would have been harmless error and
this claim must fail.
Regarding Petitioner’s claim of ineffective assistance
of counsel for failure to search the wallet, this claim must
also fail. Petitioner claims that but for counsel’s failure to
search the wallet the HIV/AIDS receipt would never have
reached the jury, and the outcome of the trial would have
F42
been different. Assuming, without deciding, that Trial
Counsel did err by not inventorying the wallet before
allowing it to be admitted into evidence, for the foregoing
reasons Petitioner cannot show prejudice.
F. Failure to Request California Jury Instruction 8.73 on
the Relation of Provocation to the Degree of Murder.
_ Petitioner alleges ineffective assistance of counsel for
failure to request CALJIC No. 8.73, regarding evidence of
provocation on the question of first or second degree
murder.
CALJIC No. 8.73 states:
If the evidence establishes that there was provo-
cation which played a part in inducing an unlaw-
ful killing of a human being, but the provocation
was not sufficient to reduce the homicide to man-
slaughter, you should consider the provocation
for the bearing it may have on whether the de-
fendant killed with or without deliberation and
premeditation.
The basis of Petitioner’s defense was that his wife
initiated a physical confrontation which resulted in her
accidental death, that he was provoked into killing her.
Petitioner claims Trial Counsel’s failure to request this
jury instruction resulted in the jury using the evidence of
provocation only for the purpose of determining whether it
was murder or manslaughter.
Where the record shows that counsel deliberately
chose not to request a specific instruction, and the record
shows that the omission was reasonable, ineffective
assistance of counsel will not be found. Butcher v.
Marquez, 758 F.2d 373, 377 (9th Cir. 1985). In the instant
i ee ee
F43
case, the record indicates that both counsels and the trial
judge went over the instructions. (R.T. at 888-89). They
covered sequentially CALJIC Nos. 8.70, 8.71, 8.72, and
8.74. Id. This tends to suggest that Trial Counsel exam-
ined CALJIC No. 8.73 and chose not to use it. Additionally,
Trial Counsel strategically chose an all or nothing ap-
proach in regard to sentencing. Had Petitioner been
convicted of second degree murder he would have faced a
possible sentence of fifteen (15) years-to-life, under Penal
Code § 190 with no guarantee of parole given the facts of
this case. As the California Appellate Court found, Trial
Counsel’s decision not to ask for this instruction so as to
focus the jury on manslaughter was reasonable. Petitioner
has failed to show Trial Counsel’s failure to request this
instruction falls outside the wide range of reasonable and
competent representation and therefore must fail.
II. _ Violation of Due Process through Failure of the
Trial Court to give CALJIC No. 8.73
Petitioner claims that the trial court violated his Fifth
Amendment right to due process by failing to give, sua
sponte, CALJIC No. 8.73."
Initially, the Court notes that the state appellate court
found that the trial court erred by failing to give CALJIC
No. 8.73, but found that it was harmless error. Indeed,
Petitioner’s argument appears to be supported by the
California Supreme Court’s decision in People v. Johnson,
‘* Respondent contends that this claim has not been exhausted in
state court. However, this Court may deny the petition notwithstanding
the failure to exhaust. 28 U.S.C. § 2254(b)\2).
F44
6 Cal. 4th 1, 42-43 (1993) (approving sua sponte instruc-
tion on provocation as to mitigating deliberation element
of mens rea for first degree murder). However, the Califor-
nia Supreme Court’s decision in People v. Saille, holding
that there no sua sponte duty to give pinpoint instructions
as opposed to special defenses, calls Johnson into question.
54 Cal. 3d 1103, 1117 (1991). Where the defendant relates
certain evidence to an element of the crime and attempts
to raise a reasonable doubt as to that element (in Saille
the evidence was voluntary intoxication), it is offered as a
defense to an element of the crime and not as a defense to
the crime itself, therefore it is a pinpoint instruction. Id.
At least two California appellate courts have held that
provocation is merely a defense to the element of premedi-
tation and/or deliberation and therefore is a pinpoint
instruction that must be requested. People v. Lee, 28 Cal.
App. 4th 1724, 1734 (1994); People v. Middleton, 52 Cal.
App. 4th 19, 32-33 (1997). This discrepancy in state law
indicates that, as Respondent points out, thi. claim may
not even rise to the level of a constitutional violation.
Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985)
(holding federal habeas relief is “unavailabie for alleged
error in the interpretation or application of state law”).
A federal court may overturn a state conviction
resulting from an error in instructing the jury only if the
instructional error “so infected the entire trial that the
resulting conviction violates due process.” Henderson uv.
Kibbe, 431 U.S. 145, 154 (1977); Cupp v. Naughten, 414
U.S. 141, 146 (1973); Jeffries v. Bladgett, 5 F.3d 1180, 1195
(9th Cir. 1993). Challenged jury instructions must be
considered in the context of the jury instructions taken as
a whole and the trial record. Estelle v. McGuire, 502 U.S.
62, 72 (1991); Prantil v. California, 843 F.2d 314, 317 (9th
ee
ser siee
Sa he kD an Me A NOT er tte a
F45
Cir. 1988). The showing of a due process violation for jury
instruction errer is much higher on collateral review than
on direct review. Henderson, 431 U.S. at 154.
The trial court’s error in omitting a jury instruction is
less likely to be prejudicial than the trial court’s misstate-
ment of the law. Henderson, 431 U.S. at 155; see also
Villafuerte v. Stewart, 111 F.3d 616, 624 (9th Cir. 1997)
(habeas petitioner whose claim involves a failure to give a
particular instruction bears an especially heavy burden).
To determine if the trial court’s failure to give a jury
instruction violated due process, the court must look at the
context of the entire trial and overall charge to the jury.
Estelle, 502 U.S. at 71-72; Cupp v. Naughten, 414 U.S. 141,
147 (1973).
A criminal defendant is entitled to adequate instruc-
tions on his or her theory of defense. United States v.
Kenny, 645 F.2d 1323, 1337 (9th Cir.) (reh’g and reh’g en
banc denied, appeal amended) (1981) (“jury must be
instructed as to the defense theory of the case”). In this
case the jury was instructed on the defense of provocation
as relates to manslaughter. The record reveals that the
Trial Counsel opted for an all-or-nothing defense strategy,
failing, whether of neglect or plan, to request CALJIC No.
8.73. They were instructed that: “To establish that a
killing is murder and not manslaughter, the burden is on
the People to prove beyond a reasonable doubt each of the
elements of murder an that act which caused the death
was not done in the heat of passion or upon a sudden
quarrel.... ” However, the jury was instructed on the
elements of first degree and second degree murder as well
as manslaughter. Further, they were instructed that if
they were not convinced beyond a reasonable doubt as to
whether the Petitioner’s actions constituted first or second
F46
degree murder, they must give the benefit of the doubt to
Petitioner and find second degree murder. (R.T. at 971).
These instructions properly place the burden of proof on
the prosecution, and they instructed the jury as to the
defense theory of the case. There was no fundamental
unfairness in the trial court’s failure to instruct the jury
that they may consider evidence of provocation as a
defense to premeditation or deliberation under these
circumstances. As such, this claim must be denied.
III. Insufficient Evidence to Support a Conviction of
First Degree Murder.
Petitioner alleges that the trial record, the statements
of witnesses and the exhibits are insufficient to prove as a
matter of law premeditation or malice aforethought
beyond a reasonable doubt. To determine whether a
conviction violates the Constitution because of insufficient
evidence, a federal court on writ of habeas corpus must
determine whether “any rational trier of fact could have
found the essential elements of the crime beyond a rea-
sonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319
(1979); Jones v. Wood, 114 F.3d 1002, 1008 (9th Cir. 1997);
Payne v. Borg, 982 F.2d 335, 338 (9th Cir. 1993) (en banc).
All evidence must be considered in the light that is the
most favorable to the prosecution. Jackson, 443 U.S. at
319; Jones, 114 F.3d at 1108. The trier of fact’s responsibil-
ity to resolve conflicting testimony, weigh evidence, and
draw reasonable inferences from the facts. Jd. The Court
must base its determination of sufficiency of the evidence
from an independent review of the record. Jones, 982 F.2d
at 338.
The California Supreme Court has stated that evi-
dence concerning motive, planning, and the manner of
F47
killing are pertinent to the determination of premeditation
and deliberation, but these factors are not exclusive nor
are they invariably determinative. People v. Perez, 2 Cal.
4th 1117, 1125-1126 (1992). “Premeditation can occur in a
brief period of time. The true test is not the duration of
time as much as it is the extent of the reflection. Thoughts
may follow each other with great rapidity and cold, calcu-
lated judgment may be arrived at quickly.” Perez, 2 Cal.
4th at 1127.
In this case, there was sufficient evidence by which a
reasonable juror could have concluded that petitioner’s
intent to kill Susan was premeditated and deliberated.
Petitioner’s own testimony provides sufficient evidence for
the jury to find deliberation and premeditation. Petitioner
testified that he put the computer cable around her head.
(R.T. at 732). He testified that the cord moved down to her
neck. (R.T. at 734). Counsel asked him what he did when
the cord got around her neck, and Petitioner replied: “I
pulled on it.” (R.T. at 735). Trial Counsel asked if he
intended to choke Susan, and Petitioner replied: “Enough
to stop [her].” (R.T. at 735). After the cable was around her
neck they struggled back and forth, Susan pushing him
away from her. (R.T. at 737). Petitioner testified that he
applied pressure to the cable and used it to push Susan
against the wall. (R.T. at 740). Reviewing this testimony,
the jury could determine that during the struggle Peti-
tioner had the opportunity to consciously choose between
F48
walking or running away from the house and his upset
wife or killing her.”
Additionally, the jury could infer planning from the
fact that Susan was killed during a time when all of the
store employees were scheduled to be attending a confer-
ence out of town. She had been relegated to bed rest so her
friends would not miss her. They could find that peti-
tioner’s wearing the computer cable around his neck,
failing to deposit it in the computer room with the printer
he was installing, was further evidence of planning.
Finally, the prosecution provided the jury with a strong
motive and the jury could reasonably have found that
petitioner’s actions following the murder were evidence of
his consciousness of guilt.
Petitioner’s disagreement with the jury’s finding
based on his own remembrances of the incident does not
mean there was insufficient evidence to find premeditation
and deliberation. It simply means the issue was factually
disputed. The Court is bound by the factual determina-
tions of the jury. Jackson, 443 U.S. at 319. Thus, there was
sufficient evidence by which a reasonable jury could have
concluded petitioner premeditated and deliberated to kill
Susan Kurtz.
RECOMMENDATION
Accordingly, the Court RECOMMENDS that the
petition for writ of habeas corpus be DENIED, and further
© Petitioner testified that during the struggle he could have gone
out the front door but chose not to. (R.T. at 1797)
RSet ee Cee RO Ce ene aR
Atel at amet
betes ig BRS se
idle) Talore a anil Bde) oe Wis ME IOS HRS te Meine he
Cab Le ator
i at
F49
RECOMMENDS any pending motions be DENIED as
moot.”
This report and recommendation is submitted to the
Honorable Anthony Ishii, United States District Court
Judge, pursuant to the provisions of 28 U.S.C.
§ 636(b)(1)(B) and Rule 72-304 of the Local Rules of Practice
for the United States District Court, Eastern District of
California. Within thirty (30) days after being served with a
copy, any party may file written objections with the court
and serve a copy on all parties. Such a document should be
captioned “Objections to Magistrate Judge’s Findings and
Recommendations.” Replies to the objections shall be served
and filed within ten (10) court days (plus three days if
served by mail) after service of the objections. The Court
will then review the Magistrate Judge’s ruling pursuant to
28 U.S.C. § 636(b)(1C). The parties are advised that
failure to file objections within the specified time may waive
the right to appeal the District Court’s order. Martinez v.
Yist, 951 F.2d 1153 (9th Cir. 1991).
IT IS SO ORDERED.
DATED: 8/8/01
/s/ Sandra M. Snyder
SANDRA M. SNYDER
UNITED STATES
MAGISTRATE JUDGE
Currently pending before this Court is Petitioner application and
request for an evidentiary hearing as to grounds one through eight (1-8)
of the second amended petition.
Gl
APPENDIX G
S078010
IN THE SUPREME COURT OF CALIFORNIA
IN RE ROBERT M. KURTZ
ON
HABEAS CORPUS
(Filed Jul 28, 1999)
Petition for writ of habeas corpus is DENIED. (In re Clark
(1993) 5 Cal.4th 750; In re Robbins (1998) 18 Cal.4th 770,
780; In re Waltreus (1965) 62 Cal.2d 218, 225.)
/s/ George
Chief Justice
scp,
Mii. idee aii ie a.
H1
APPENDIX H
Fifth Appellate District No. F028036
S060748
IN THE SUPREME COURT OF CALIFORNIA
In Re ROBERT M. KURTZ On Habeas Corpus
(Filed Jun. 18, 1997)
Petition for review DENIED on the merits.
/s/ George
Chief Justice
Il
APPENDIX I
Fifth Appellate District No. F020453
S047547
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE, Respondent
v.
ROBERT M. KURTZ, Appellant
(Filed Aug. 30, 1995)
Appellant’s petition for review DENIED.
/s/ Lucas
Chief Justice
J1
APPENDIX J
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
IN THE COURT OF APPEAL OF THE
STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE, F020453
Plaintiff and Respondent, | (Super. Ct. No. 480916-6)
v. 7 OPINION
ROBERT M. KURTZ, (Filed May 31, 1995)
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Fresno County. Gary Ray Kerkorian, Judge.
Cliff Gardner, under appointment by the Court of
Appeal, and Robert M. Kurtz, in pro. per., for Defendant
and Appellant.
Daniel E. Lungren, Attorney General, George Wil-
liamson, Chief Assistant Attorney General, Robert R.
Anderson, Assistant Attorn 2y General, Edgar A. Kerry and
Robert P. Whitlock, Deputy Attorneys General, for Plain-
tiff and Respondent.
Defendant Robert M. Kurtz was convicted by jury of
the first degree murder of his wife Susan. Defendant
appeals, claiming the evidence is insufficient to support a
first degree murder conviction, the failure to instruct on
provocation as it related to second degree murder was
prejudicial, trial counsel was ineffective in failing to
request a provocation instruction, the trial court erred in
J2
excluding testimony concerning defendant’s propensity or
lack thereof for violence, and the trial court erred when it
ordered the doors of the courtroom to be locked during
closing argument. We affirm.
FACTS
Defendant and Susan Kurtz owned a computer store,
MacSource, in Fresno. They had a two-year-old son.
Although defendant and Susan had a successful business
and were very active ‘n their church, they had a troubled
marriage due largely to defendant’s alcohol and cocaine
use. They separated from August to October of 1992. They
reunited and Susan became pregnant with their second
child. Because she was having a difficult pregnancy, it was
determined in January of 1993 that she should do her
work for their business from their home.
On Sunday, January 3, 1993, defendant and Dale
Shimono, an employee at MacSource, worked together at
MacSource to set up a program so Susan could work from
home. Dale talked to Susan on the phone while he was
setting up the program.
That evening defendant attended an Alcoholics Anony-
mous (AA) meeting. His sponsor, Reed Harris, did not
notice anything unusual about defendant’s behavior that
evening. As part of the AA program, members are required
to work through a 12-step program. The fourth step is a
personal inventory of their lives. It includes a list of the
wrongs they committed and the people they resented.
Defendant did not appear at the business on Monday,
January 4, as expected. On Tuesday, January 5, Dale
J3
Shimono talked to defendant on the telephone. He told
Dale that Susan had found his “fourth step” and things
were “fucked up.” Defendant showed up at work that
afternoon. He was limping and had a bandage on his left
hand. On Tuesday evening, defendant went to the AA
meeting. Harris noted that defendant was agitated that
evening. Defendant revealed to Harris that Susan had
found his fourth step notes.
Between Monday, January 3, 1993, and Thursday,
January 7, 1993, several friends and family members
attempted to contact Susan by telephone. They either
received the answering machine or defendant spoke to
them and said Susan was resting or in the shower. Susan
did not return the calls. Susan normally returned tele-
phone calls within a relatively short period of time.
Close to midnight on Thursday, January 7, defendant
called his stepfather, Jerry Hamilton. Defendant told
Jerry he was worried because Susan had left around 9:30
to go to the store and had not returned. Defendant asked
Jerry to look for her. Jerry first drove to the Von’s grocery
store and, when he did not see Susan’s car in the parking
lot, he drove to MacSource.
At MacSource, Jerry found Susan’s car parked in front
of the store. The front door of the store was ajar and there
were keys in the interior side of the door. There were no
lights on in the front of the store. Jerry called defendant
from his car phone and told him to come to the store.
Defendant called Susan’s father, George Marsh, and
asked him to come and take care of the son. Defendant
was concerned that Susan had not come home. When
George arrived at defendant and Susan’s home, defendant
was gone; the son was in his room. The house was cold.
J4
When George did not hear from defendant, he called his
wife to watch the child so he could go to MacSource.
Police officer David Scroggins arrived at MacSource.
He spoke to defendant and Jerry. Defendant told Officer
Scroggins that Susan had left at 9:30 p.m. and when she
failed to return by 11:30 p.m. he became concerned,
causing him to telephone Jerry to request his assistance.
Officer Scroggins found Susan’s car in front of the
store with the keys in the ignition. The front door to
MacSource was unlocked. Susan’s coat was in a chair at
her desk. A 2 x 4 used to secure the back door was gone.
Seventy-five dollars and a printer were missing from the
store. Scroggins filed a missing person report.
During the next several days, a great deal of publicity
was generated in an attempt to find Susan. These efforts
were unsuccessful. Defendant’s father flew im from out of
town to aid in the search. He offered to stay at defendant’s
home, but defendant insisted that he stay somewhere else.
Defendant and Robbie stayed at the home of defendant’s
mother and Jerry.
On Monday, January 11, 1993, defendant went out to
dinner with his mother and Jerry. During dinner, defen-
dant told them Susan was dead. Defendant claimed Susan
committed suicide in the garage. Defendant arranged to
turn himself in to his attorney the following morning.
Late that evening, defendant contacted his AA spon-
sor, Reed Harris. Harris came and spoke to defendant.
Defendant told Harris that Susan was upset when she
found his fourth step. Defendant left, and when he re-
turned, he found Susan dead and he believed she commit-
ted suicide. Defendant was confused as to why he did not
en ee ee ‘
J5
call the police; he did comment that he feared he would be
a disgrace to the church.
Detective Schiotis was assigned to the Kurtz case.
After investigating the case, Schiotis told defendant he
thought he was involved. Defendant denied any involve-
ment. On Saturday, January 9, detective Schiotis noticed
an injury to defendant’s hand. It looked like teeth marks.
On Tuesday, January 12, Schiotis executed a search
warrant at defendant’s home. Defendant arrived with
Jerry during the search of his home in order to get a
change of clothes. He was allowed to get the clothes and
then he left and went to his attorney's office. During the
execution of the search warrant, defendant’s attorney
phoned the house and told the officers where Susan’s body
could be found.
Susan’s body was found in the home, on the closet
floor of the southeast bedroom. A bed had been pushed up
against the closet door and there were air fresheners in
the room and in the closet. Susan’s feet were bound with
duct tape and her body was wrapped in several layers of
plastic.
Susan was five feet six inches tall and weighed two
hundred forty-two pounds at the time of the autopsy. The
fetus she was carrying was eight to ten weeks old. It was
Dr. Venu Gopal’s opinion that Susan died from strangula-
tion. He found evidence of both ligature and manual
strangulation. Susan also had a black eye and injuries to
her tongue. It was Dr. Gopal’s strong opinion that the
injuries were not consistent with Susan’s hanging herself.
Because of defendant’s cocaine use, Susan had removed
defendant’s name from the MacSource checking account. It
bothered defendant that he was no longer on the account.
J6
Dale Shimono testified that he and defendant discussed
problems together. One day during their discussion, and
during defendant and Susan’s separation, defendant told
Dale that it would be easier if Susan was dead and easier
to kill her and dump her in a field.
Defense
Defendant testified at trial. He explained that his
fourth step included notes about the women he had been
with sexually. He wrote about being unfaithful to Susan.
He listed people he resented, and Susan was number one
on the list. Susan had previously questioned him about
being unfaithful and he always denied any infidelities.
Susan was concerned that defendant was unfaitiiful to her
because she was overweight. Defendant admitted he had
been dishonest with police, lawyers and many others. He
then came forth with his story of Susan’s death.
Defendant arrived home Sunday, January 3, at
approximately 10:30 p.m. Susan was standing there
holding the paper listing defendant’s fourth step in her
hand. Susan said to defendant, “You lied to me.” Susan
wanted to talk and wanted specifics about defendant’s
infidelities during their marriage. Defendant told Susan
she had no business reading his fourth step and he was
not going to respond. Defendant left and returned in about
an hour. He slept alone in a spare bedroom that night.
Defendant awakened the next morning with the
intention of setting up the computer for Susan to use for
the business. Defendant went to the garage to retrieve
computer equipment from the trunk of the car. Susan
came out to the garage, again wanting to discuss defen-
dant’s fourth step. Defendant told Susan the garage was
t
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;
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12
;
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J7
not an appropriate place to discuss the matter. Susan went
inside and defendant followed carrying computer equip-
ment with him.
Defendant went down the hall and put the p
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