# Appendix — White v. Van Sickel, (1999) (No. 358)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1999

## Text

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BQ 358 Wi 29 1999

No. ____gFRice OF THE CLERK

IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1999

THEO WHITE, Warden,
- Petitioner,

V.

MICHAEL EDWARD VANSICKEL,
Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE
NINTH CIRCUIT

APPENDIX

BILL LOCKYER
Attorney General
DAVID P. DRULINER
Chief Assistant Attorney General
ROBERT R. ANDERSON
Senior Assistant Attorney General
STAN CROSS
Supervising Deputy Attorney General
PATRICK J. WHALEN
Deputy Attorney General
Counsel of Record
1300 I St., Suite 125
P O. Box 944255
Sacramento, CA 94244-2550
Telephone: (916) 324-2785
Counsel for Petitioner

TABLE OF APPENDICES

Document

United States Court. of Appeals
For The Ninth Circuit
Opinion

United States Court of Appeals
For The Ninth Circuit
Order

United States Court of Appeals
Eastern District of California
Findings and Recommendations

United States District Court

Eastern District of California
Order

California Code of Civil Procedure
§ 231

Appendix

APPENDIX A

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

MICHAEL EDWARD

VANSICKEL,
Petitioner-Appellant, No. 97-17143

D.C. No.

CV-95-01355-WBS

We

THEO WHITE, Warden,

Respondent-Appellee. OPINION

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Appeal from the United States District Court
for the Eastern District of California
William B. Shubb, District Judge, Presiding

Argued and Submitted
July 17, 1998--San Francisco, California

Filed January 27, 1999

Before: Stephen Reinhardt, John T. Noonan and
David R. Thompson, Circuit Judges

Opinion by Judge Thompson;
Dissent by Judge Reinhardt

SUMMARY
Criminal Law and Procedure/Habeas Corpus

The court of appeals affirmed a judgment of the
district court. The court held that on federal habeas

corpus, a criminal trial attorney’s failure to make a timely
objection to an erroneous denial of peremptory challenges
creates a procedural default requiring the petitioner to
show actual resulting prejudice.

Under Cal. Code Civ. P. § 231, a criminal defendant
on trial for an offense that carries a penalty of death or
life imprisonment is entitled to 20 peremptory challenges.
In appellant Michael Vansickel’s California capital murder
trial, the court limited his peremptory challenges to ten.
Defense counsel did not object. During jury selection,
Vansickel exercised ten peremptories. Both sides agreed
with the court’s observation that a jury had been selected.
The jury convicted Vansickel as charged.

Based on the court’s announcement that it had erred
in limiting defense peremptory challenges, Vansickel
moved for a new trial. He presented evidence that he had
been dissatisfied with the composition of the jury, and
asserted that he would have used the additional
peremptories.

The trial court denied the motion on the ground that
defense counsel had failed to make a contemporaneous
objection to the denial of peremptory challenges, and had
failed to establish resulting prejudice.

The California Court of Appeal affirmed, and the
California Supreme Court denied review.

On federal habeas corpus, the district court
determined that the trial court’s denial of the statutorily
mandated peremptory challenges violated Vansickel’s due
process rights. However, the court concluded that the
claim was procedurally defaulted by defense counsel’s
failure to object to the irregular procedure at trial. The
court went on to rule that Vansickel was required, but

failed to establish cause and resulting prejudice.
Vansickel appealed.

[1] Peremptory challenges are not of constitutional
dimension. ‘The "right" to peremptory challenges is
"denied or impaired" only if the defendant does not
receive that which state law provides.

[2] California Code of Civil Procedure creates a
Statutoryright to 20 peremptory challenges when a
defendant faces a sentence of death or life imprisonment.
Vansickel was entitled to 20 peremptory challenges and he
received only 10. This state right to peremptory
challenges is a state-created liberty interest protected by
the Fourteenth Amendment.

[3] Vansickel’s federal constitutional rights were
violated. [4] However, Vansickel failed to timely object to
the denial of his statutory allotment of peremptories in
state court. By failing to object, he procedurally defaulted
on the federal constitutional claim he raised in this habeas
proceeding.

[5] Federal habeas review of a claim is barred in all
cases where a state prisoner has defaulted his federal
claim in state court pursuant to an adequate and
independent state procedural rule. To preclude federal
review, a state court must have relied on a procedural dar
as the basis for its disposition of the case.

[6] The California Court of Appeal found that
defense counsel failed to contemporaneously object, and
as a result Vansickel had to establish prejudice. The court
cited to California law that an error in limiting peremptory
challenges, if timely and properly raised, is reversible per
se. However, when a defendant fails to timely object, his
conviction will not be reversed unless he demonstrates

prejudice. The Court of Appeal applied the prejudice
standard of miscarriage of justice under California law,
and determined that Vansickel could not establish
prejudice. [7] Because the California court found
Vansickel’s claim procedurally barred under state law, he
had to demonstrate cause and prejudice to obtain habeas
relief under federal law.

[8] If a claim is procedurally barred by an adequate
and independent state ground, in appropriate
circumstances a federal court may still review the merits
of the defaulted claim. However, federal habeas review
is barred unless the habeas prisoner can demonstrate
cause for the denial and actual prejudice as a result of the
alleged violation of federal law, or demonstrate that
failure to consider the claims will result in a fundamental
miscarriage of justice.

[9] The existence of cause for a procedural default
must ordinarily turn on whether the prisoner can show
that some objective factor external to the defense
impeded counsel’s efforts to comply with the state’s
procedural rule. Ineffective assistance of counsel is cause
for procedural default, but attorney error short of
ineffective assistance does not constitute cause. [10]
Attorney inadvertence or ignorance of the law does not
establish cause for a procedural default.

[11] In this case, it appeared that defense counsel’s
ignorance of the law probably would not have constituted
cause to excuse the procedural default. But even if it
would have, Vansickel could not establish prejudice
because there was no reasonable probability that but for
counsel’s error, the result of the trial would have been
different.

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[12] Vansickel did not demonstrate that if he had
been allowed to use additional peremptories, the outcome
of his case would have been different. The evidence
against Vansickel was overwhelming. [13] Vansickel failed
to demonstrate that the denial of peremptory challenges
had a substantial and injurious effect or influence in
determining the jury’s verdict.

[14] Vansickel’s case was not a direct federal appeal
where the court of appeals reviews the error after a
contemporaneous objection has been made. Vansickel
was before the court of appeals on habeas review of his
state-court conviction after he failed to make a timely
objection to the error in state court. The analysis for this
procedural default was cause and prejudice. Vansickel
failed to establish prejudice.

Judge Reinhardt dissented, writing that because it is
virtually impossible to determine whether a denial of
peremptory challenges was harmless, the error in
Vansickel’s case was reversible per se.

COUNSEL

Connie Marie Alvarez, Federal Public Defender,
Sacramento, California, for the petitioner-appellant.

Patrick J. Whalen, Deputy Attorney General, Sacramento,
California, for the respondent-appellee.

OPINION
THOMPSON, Circuit Judge:

Michael Edward Vansickel appeals the judgment of
the district court denying his habeas petition under 28
U.S.C. § 2254. Vansickel was tried and convicted of first
degree murder with the special circumstance of lying in
wait. During jury selection, he was erroneously denied
half of his peremptory challenges, but he failed to
contemporaneously object.

This case presents the question whether the
erroneous denial of peremptory challenges provided for by
state statute violates a defendant’s due process rights
under the United States Constitution. It also presents the
question whether, if a federal constitutional violation
occurs in this circumstance, automatic reversal of the
defendant’s state court conviction is required, or whether,
when the defendant has procedurally defaulted on his
federal constitutional claim in state court, he must
establish cause and prejudice for the default.

We have jurisdiction pursuant to 28 U.S.C. § 2253,
and we affirm the district court’s denial of the writ. We
hold that Vansickel’s constitutional rights were violated
because he did not receive the full complement of
peremptory challenges he was entitled to under California
law. However, Vansickel procedurally defaulted his claim
in state court and this bars federal habeas review unless
he can demonstrate both cause and prejudice, which he
cannot.

I
BACKGROUND

Vansickel and Mark Howard, the victim, were in a
car that crashed into a drainage ditch in Corning,
California. When the police arrived they found Howard
in the car; he had been shot in the head at close range by
a .22 caliber revolver.

A resident saw Vansickel running across a nearby
lawn and heard him say that his friend had been shot, he
did not do it, and not to call the police. When the police
arrived, they found Vansickel lying in a driveway. As they
approached, Vansickel told them that he had the murder
weapon. He then displayed a gun, a Ruger .22-caliber
revolver, wrapped in a blood-soaked shirt. The officers
took cover and ordered Vansickel to drop the gun.
Vansickel fired a shot and then dropped the gun and
surrendered. He had broken his hip during the car
accident and was taken to a hospital.

When Vansickel was questioned at the hospital, he
claimed that a third peison, Dan, had been in the car and
had shot Howard. However, Vansickel later told his
former girlfriend that he had "put two rounds into Mark
[Howard]" and he had made up the story about Dan.
Vansickel further discredited his claims of innocence by
sending letters from jail that were admitted into evidence
at trial. In one of the letters, Vansickel stated: "I think
I fucked up by telling them that there was one more
person in the car and that he shot Mark. I gave them a
fony [sic] description an [sic] what he was wearing." Later
in the same letter, he wrote, "I had to say something to
the cops so I made up this Dan... ." At trial Vansickel
conceded he had shot Howard.

Following his conviction, Vansickel filed a motion for
a new trial because during jury selection he was denied
half of his peremptory challenges. Under California Code
of Civil Procedure § 231, a criminal defendant who is on
trial for an offense where the penalty is death or life
imprisonment is entitled to twenty peremptory
challenges.~ Vansickel was only allowed ten
peremptories.

The state court judge had discussed jury selection
with counsel at a pretrial conference. Recollections of
what transpired at the conference conflict, however it is
clear that both the court and defense counsel agreed that
the defense was entitled to ten peremptories. The judge
recalled that defense counsel stated it was his
understanding he was entitled to ten peremptories and the
court agreed. Defense counsel recalled that he asked the
court how many peremptories he was entitled to, and the
court said ten. The prosecuting attorney remained silent.

During jury selection, Vansickel exercised the ten
peremptory challenges. After Vansickel’s tenth challenge,
the court stated, "I think we have a jury, Counsel." Both
the prosecutor and the defense agreed.

After the verdict, but prior to sentencing, the court
realized it had erroneously denied Vansickel his full
allotment of peremptory challenges. The court
immediately contacted the prosecutor and defense counsel
and revealed the error.

1. Section 231(a) reads: "In criminal cases, if the offense charged
is punishable with death, or with imprisonment in the state prison for
life, the defendant is entitled to 20 and the people 20 peremptory
challenges." Cal. Civ. Proc. Code § 231(a) (West 1997).

Vansickel then moved for a new trial and presented
evidence that he had been dissatisfied with the
composition of the jury. Vansickel argued he would have
used the additional peremptory challenges. In support of
this argument, defense counsel presented a jury chart
which had an asterisk next to juror number two,
Mr. Frank. Defense counsel argued that he would have
challenged Mr. Frank, who was a pharmacist, because
Vansickel tested positive for illegal drug use after the
murder, and defense counsel did not want a pharmacist on
the jury. Further, defense counsel argued he would have
used two more peremptory challenges to try to put on the
jury two other potential jurors from the jury pool who he
felt would be more sympathetic to the defense.

The trial court denied the motion for a new trial.
The court reasoned that because defense counsel failed to
make a contemporaneous objection to the loss of
peremptory challenges, the court could only grant the
motion if Vansickel demonstrated prejudice. The court
found no prejudice. The court stated it could see no logic
in defense counsel’s argument that because juror number
two, Mr. Frank, was a pharmacist he would have a strong
feeling about someone with drugs in their system.
Further, Vansickei’s use of illegal drugs was not a major
part of the case. The court dismissed as "the merest
speculation" defense counsel’s argument that he would
have used peremptories to try to put two other persons on
the jury. The court stated that if these two potential
jurors had been drawn and on voir dire they turned out to
be as favorable to the defense as defense counsel claimed,
the prosecution most likely would have used _ its
peremptories to strike them.

The California Court of Appeal affirmed the trial
court. It determined that Vansickel’s failure to timely
object required that he demonstrate prejudice. The

10

standard for prejudice under California law is miscarriage
of justice. The Court of Appeal held that Vansickel could
not demonstrate prejudice for essentially the same reasons
relied on by the trial court. It concluded that Mr. Franks’s
occupation as a pharmacist was not prejudicial because
drugs were not a significant part of the case and Vansickel
did not present any evidence that drugs affected his
mental state at the time of the murder. Further, it was
mere speculation that the two prospective jurors Vansickel
wanted to put on the jury would ever have been sworn.
Finally, the appellate court concluded that the
overwhelming evidence against Vansickel supported the
conclusion that no miscarriage of justice occurred. The
California Supreme Court denied review. Vansickel then
filed state habeas petitions in the California Court of
Appeal and in the California Supreme Court. Both courts
denied the petitions. He then filed his federal habeas
petition in the district court.

The district court determined that the trial court’s
improper denial of peremptory challenges violated
Vansickel’s due process rights. However, the court
concluded that the claim was procedurally barred because
Vansickel failed to make a timely objection in state court.
Therefore Vansickel had to demonstrate cause and
prejudice. The district court concluded that defense
counsel’s failure to object to a limit of ten peremptories
did not establish cause, and that Vansickel could not
establish prejudice because there was no basis to infer that
the result of Vansickel’s trial would have been different
had he been given his full complement of peremptory
challenges.”

2. The district court relied upon a report and recommendation
from the magistrate judge. The court agreed with the magistrate
judge’s determination that there was a due process violation and
procedural default, but disagreed with the magistrate judge’s

:
4
:

A. Due Process Violation

The first issue we address is whether denial of
peremptory challenges provided for by a state statute
violates a state criminal defendant’s federal constitutional
rights.

[1] The Supreme Court has stated that "peremptory
challenges are not of constitutional dimension." Ross v.
Oklahoma, 487 US. 81, 88, 101 L. Ed. 2d 80, 108 S. Ct.
2273 (1988). In Ross, the Court held that the erroneous
denial of a challenge for cause that required defense
counsel to use a peremptory challenge did not violate the
Sixth Amendment. The Court concluded that peremptory
challenges are a creature of statute, not required by the
Constitution, and "as such, the ‘right’ to peremptory
challenges is ‘denied or impaired’ only if the defendant
does not receive that which state law provides." Jd. at 89.

In United States v. Martinez-Salazar, 146 F.3d 653 (9th
Cir. 1998), we held that Ross did not foreclose a Fifth
Amendment challenge to a wrongful denial of a
peremptory challenge. Jd. at 657-58. There, we
concluded that the erroneous denial of peremptory
challenges provided for by federal law violated a
defendant’s Fifth Amendment right to due process in a
federal prosecution. /d. at 658. We distinguished our
holding from earlier decisions of this court that concluded
the impairment of a defendant’s use of peremptory
challenges did not constitute a due process violation. See
Siripongs v. Calderon, 35 F.3d 1308 (9th Cir. 1994); United
States v. Baker, 10 F.3d 1374 (9th Cir. 1993). These cases
are instructive.

conclusion that there was cause and prejudice to overcome the
procedural bar.

12

in Baker, the defendants alleged their Fifth
Amendment due process rights were violated by the
district court’s refusal to ask supplemental voir dire
questions to probe prospective jurors for bias. Baker, 10
F.3d at 1403-04. The defense used peremptory challenges
to excuse three jurors that it argued should have been
excused for cause. However, the defendants’ due process
rights were not violated because they were provided more
than the required allotment of peremptory challenges and
they did not exhaust them. /d. at 1404.

In Siripongs, the petitioner argued that the trial court
applied the wrong standard during voir dire to determine
"death prone" jurors. Stripongs, 35 F.3d at 1322. We
stated that it was "immaterial" that petitioner had to use
peremptory challenges to excuse jurors that the trial court
should have excused for cause because the petitioner did
not exhaust all of his peremptory challenges. /d. at 1322.
We also stated: "Moreover, the loss of peremptory
challenges is not a due process violation." /d.

In Martinez-Salazar, we distinguished Siripongs stating:
"Siripongs cannot stand for the proposition that the loss of
a peremptory challenge never violates due process
because Ross and Baker make clear that some such losses
do indeed violate due process." Martinez-Salazar, 146 F.3d
at 658. The petitioner in Sintpongs "could suffer no due
process violation because he did not exhaust all of his
peremptory challenges and hence his right was not ‘denied
or impaired’ in any way." /d. Further, Siripongs alleged
a Sixth Amendment violation, not a violation of his due
process rights under the Fifth Amendment. /d.

We concluded in Martinez-Salazar that the erroneous
denial of peremptory challenges can constitute a due
process violation under the Fifth Amendment. Because
the due process requirement of the Fifth Amendment is

13

incorporated into the Fourteenth Amendment, the first
question we confront in this state habeas case is whether
the erroneous denial of peremptory challenges provided
for by California law violated Vansickel’s due process
rights under the Fourteenth Amendment.

[2] California Code of Civil Procedure § 231 creates
a statutory right to twenty peremptory challenges when a
defendant faces a sentence of death or life imprisonment.
Vansickel was entitled to twenty peremptory challenges
and he only received ten. This state right to peremptory
challenges is a state-created liberty interest protected by
the Fourteenth Amendment to the Constitution. "The
failure of a state to abide by its own statutory commands
may implicate a liberty interest protected by the
Fourteenth Amendment against arbitrary deprivation by
a state." Fetterly v. Paskett, 997 F.2d 1295, 1300 (9th Cir.
1993); see also Moran v. Godinez, 57 F.3d 690, 698 (9th
Cir. 1994) ("the denial or misapplication of state
procedures that results in the deprivation of a substantive
right will implicate a_ federally recognized liberty
interest."),

[3] Applying these principles, we conclude that
Vansickel’s federal constitutional rights were violated. See
Martinez-Salazar, 146 F.3d at 658 ("Due process would be
violated if a trial court permitted a defendant to exercise
fewer than the number of peremptory challenges
authorized by law."); Hines v. Enomoto, 658 F.2d 667 (9th
Cir. 1981) (holding denial of half of the peremptory
challenges authorized by statute violates a defendant’s due
process rights).*

3. Hines was decided prior to the Supreme Court’s decision in
Ross v. Oklahoma, 487 U.S. 81, 101 L. Ed. 2d 80, 108 S. Ct. 2273
(1988) which held that the Sixth Amendment does not provide any
constitutional right to peremptory challenges. In Hines, the court

Ff

14

[4] Vansickel, however, failed to timely object to the
denial of his statutory allotment of peremptories in state
court. By failing to object, he procedurally defaulted on
the federal constitutional claim he raises in this habeas
proceeding.

B. Procedural Default

[5] Federal habeas review of a claim is barred in all
cases where a state prisoner has defaulted his federal
claim in state court pursuant to an adequate and
independent state procedural rule. Coleman v. Thompson,
501 U.S. 722, 750, 115 L. Ed. 2d 640, 111 S. Ct. 2546
(1983). In order to preclude federal review, a state court
must have relied on a procedural bar as the basis for its
disposition of the case. Harms v. Reed, 489 U.S. 255,
261-62, 103 L. Ed. 2d 308, 109 S. Ct. 1038 (1989). "[A]
procedural default does not bar consideration of a federal
claim on either direct or habeas review unless the last
state court rendering a judgment in the case ‘clearly and
expressly’ states that its judgment rests on a state
procedural bar." /d. at 263.

[6] To determine whether Vansickel’s claim was
procedurally barred, we look to the California Court of
Appeal’s opinion because it is the last reasoned state
court opinion. See Yist v. Nunnemaker, 501 U.S. 797, 803,
115 L. Ed. 2d 706, 111 S. Ct. 2590 (1991). The California
Court of Appeal found that defense counsel failed to
contemporaneously object, and as a result Vansickel had
to establish prejudice. The court cited to California law
that an error in limiting peremptory challenges, if timely
and properly raised, is reversible per se. See People v.

assumed that the defendant’s due process rights would be violated
because denial of peremptory challenges would violate the Sixth
Amendment.

3
4

3
:
:

15

Yates, 34 Cal. 3d 644, 654, 669 P.2d 1, 194 Cal. Rptr. 765
(1983). However, where a defendant fails to timely object,
his conviction will not be reversed unless he demonstrates
prejudice. See People v. Caro, 46 Cal. 3d 1035, 1046-47,
761 P.2d 680, 251 Cal. Rptr. 757 (1988). The California
Court of Appeal applied the prejudice standard of
miscarriage of justice under California law, and
determined that Vansickel could not establish prejudice.

[7] Because the California court found Vansickel’s
claim procedurally barred under state law, to obtain
habeas relief under federal law he must demonstrate
cause and prejudice.

C. Cause and Prejudice

[8] If a claim is procedurally barred by an adequate
and independent state ground, as it is in the present case,
in appropriate circumstances a federal court may still
review the merits of the defaulted claim. "The doctrine of
procedural default is based on comity, not jurisdiction, and
the federal courts retain the power to consider the merits
of procedurally defaulted claims." Harmon v. Ryan, 959
F.2d 1457, 1461 (9th Cir. 1992). Federal habeas review is
barred, however, unless the habeas prisoner can
demonstrate "cause for the default and actual prejudice as
a result of the alleged violation- of federal law, or
demonstrate that failure to consider the claims will result
in a fundamental miscarriage of justice." Coleman, 501
US. at 750.

1. Cause

[9] The existence of cause for a procedural default
"must ordinarily turn on whether the prisoner can show
that some objective factor external to the defense
impeded counsel’s efforts to comply with the State’s

16

procedural rule." Murray v. Carrier, 477 U.S. 478, 488, 91
L. Ed. 2d 397, 106 S. Ct. 2639 (1986). Ineffective
assistance of counsel is cause for procedural default, but
“attorney error short of ineffective assistance of counsel
does not constitute cause." /d. at 492.

We are presented with a rather unusual instance of
claimed ineffective assistance because both the prosecutor
and the court shared in defense counsel’s_ error.
Nevertheless, Vansickel argues that his counsel’s ignorance
of the law and resulting failure to object to the loss of half
of his allotted peremptory challenges constitutes
ineffective assistance.

[10] Attorney inadvertence or ignorance of the law
does not establish cause for a procedural default. Murray,
477 U.S. at 486-87; Correll v. Stewart, 137 F.3d 1404, 1416
(9th Cir. 1998) ("The mere ignorance or inadvertence of
[defense] counsel does not furnish sufficient cause to
excuse procedural default."); but cf. Garrison v. McCarthy,
653 F.2d 374, 378 (9th Cir. 1981) (stating that "in cases of
attorney inadvertence or ignorance, a lesser showing of
incompetency of counsel shouid be sufficient for ‘cause.”).

[11] In the present case, it appears defense counsel’s
ignorance of the law probably would not constitute cause
to excuse the procedural default. But even if it would, we
hold that Vansickel cannot establish prejudice because
there is no reasonable probability that but for counsel’s
error, the result of the trial would have been different.
See White v. Lewis, 874 F.2d 599, 604 (9th Cir. 1989).

2. Prejudice
Vansickel asks us to apply the prejudice standard set

forth in Hines v. Enomoto, 658 F.2d 667 (9th Cir. 1981).
Hines was denied half of his allotted peremptory

Se ee ee te eT

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challenges because his attorney failed to recognize that
Hines was entitled to twenty-six peremptories rather than
the normal thirteen. /d. at 671. On habeas review,
Hines’s claim was procedurally barred because his counsel
failed to object in state court. /d. at 673. We applied a
cause and prejudice analysis to Hines’s claim. We held
that in order to establish prejudice, he had to
"demonstrate that his state trial counsel would have
challenged another juror or jurors had he been aware of
the remaining challenges." Jd. at 674.

If we were to measure prejudice under the Hines
standard, Vansickel would indeed be able to demonstrate
prejudice. Defense counsel had placed an asterisk next to
Juror Franks’s name and the trial court was persuaded
that he would have challenged Franks if he had been
aware of the remaining challenges. However, Hines was
decided in 1981 prior to the Supreme Court’s decision in
Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674,
104 S. Ct. 2052 (1984).

Strickland held that to establish prejudice, a habeas
petitioner must demonstrate "a reasonable probability
that, but for counsel’s unprofessional errors, the result of
the proceedings would have been different. A reasonable
probability is a probability sufficient to undermine
confidence in the outcome." Strickland, 466 U.S. at 694.
We also consider whether "the result of the proceedings
was fundamentally unfair or unreliable." Lockhart v.
Fretwell, 506 U.S. 364, 368, 122 L. Ed. 2d 180, 113 S. Ct.
838 (1993).

[12] Vansickel has not demonstrated that if he had
been allowed to use additional peremptories to strike
Juror Franks or to attempt to put two other persons from
the jury pool on the jury, the outcome of his case would
have been different. The evidence against Vansickel was

alll

18

overwhelming. He was found at the murder scene with
the murder weapon in his hand. He admitted to his
former girlfriend that he had shot Howard. In the letters
he wrote in jail, he stated that he fabricated the story
about Dan. Further, at trial he conceded that he had, in
fact, shot Howard.“ There is no "reasonable probability
that, but for counsel’s unprofessional errors, the result of
the proceedings would have been different." Strickland,
466 US. at 694.

[13] In sum, Vansickel failed to demonstrate that the
denial of peremptory challenges "had a substantial and
injurious effect or influence in determining the jury’s
verdict." Brecht, 507 U.S. at 638.

D. Automatic Reversal

We distinguish this case from our recent opinions
holding that erroneous denial of a peremptory challenge
requires automatic reversal. See Martinez-Salazar, 146
F.3d 653; United States v. Annigoni, 96 F.3d 1132 (9th Cir.
1996). Both Martinez-Salazar and Annigoni are direct
federal appeal cases in which the defendants timely
objected in the district court to the erroneous limitation of
their peremptory challenges.

In Annigoni, the district court erroneously refused to
allow Annigoni to use one of his peremptory challenges to
strike a potential juror. Annigoni, 96 F.3d at 1136. We

4. This analysis is similar to the prejudice analysis applied by the
California Appellate Court. The appellate court applied the
“miscarriage of justice” standard and concluded that it was not
reasonably probable that Vansickel would have received a more
favorable result if there had been no error. In light of the entire
record and the overwhelming evidence against Vansickel, the error
did not result in a miscarriage of justice.

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held that the erroneous denial of a criminal defendant’s
right of peremptory challenge in a federal trial requires
automatic reversal. /d. at 1134.

In Martinez-Salazar, the defendant was forced to use
one of his peremptory challenges to strike a juror after
the court erroneously refused to strike the juror for cause.
146 F.3d at 655. In accordance with Annigoni, we held
that the error required automatic reversal. /d. at 659. See
also United States v. Turner, 558 F.2d 535, 538 (9th Cir.
1977) (holding that the denial of peremptory challenges
requires automatic reversai without a showing of
prejudice).

[14] Unlike Annigoni, Martinez-Salazar, and Turner,
Vansickel’s case is not a direct federal appeal where we
review the error after a contemporaneous objection has
been made. Vansickel is before us on habeas review of
his state court conviction after he failed to make a timely
objection to the error in state court. The applicable
analysis for this state court procedural default is cause and
prejudice. Wainwnght v. Sykes, 433 U.S. 72, 85-87, 53 L.
Ed. 2d 594, 97 S. Ct. 2497 (1977). Applying this analysis,
we conclude Vansickel failed to establish prejudice.

II
CONCLUSION

Although we hold that Vansickel’s federal due
process rights were violated by the erroneous denial of
half of the peremptory challenges to which he was entitled
under California law, his failure to timely object precludes
our consideration of whether automatic reversal would
apply to his conviction. Because Vansickel procedurally
defaulied his federal constitutional claim in state court, he

20

is required to establish cause and prejudice to excuse his
state court default. He has not done so.

AFFIRMED.

REINHARDT, Circuit Judge, dissenting:

The majority acknowledges that the trial court’s
erroneous denial of half of Vansickel’s statutorily
authorized peremptory challenges - ten out of twenty -
violated his right to due process. The majority further
acknowledges that our cases hold that, because it is
impossible to determine whether an error that affects the
composition of a jury had an actual effect on a jury’s
verdict, the erroneous denial of even one peremptory
challenge requires a presumption of prejudice and
automatic reversal of a criminal conviction. Finally, the
majority appears to agree that the rule requiring the
presumption of prejudice applies in habeas cases as well
as on direct appeal. However, the majority then holds
that because Vansickel’s counsel failed to object during
the empanelment of the jury, Vansickel procedurally
defaulted his claim and therefore must, unlike the
ordinary habeas petitioner, demonstrate actual prejudice
as to the outcome of his case. Without explaining how
Vansickel or any other litigant could possibly make such
a showing, the majority simply overrides our well
established rule that prejudice as to the result need not,
indeed cannot, be shown in jury composition cases. By
doing so, it renders it virtually impossible for any
defendant to vindicate his right to due process if his
attorney has committed a procedural default in such a
case. In rejecting our common sense rule, the majority
commits a_ serious. error. Its imposition of an

21

insurmountable barrier to the vindication of a right to due
process is incompatible with the Constitution. See Penson
v. Ohio, 488 U.S. 75, 86, 102 L. Ed. 2d 300, 109 S. Ct. 346
(1988) (prejudice must be presumed because otherwise
right to appellate counsel would be eviscerated); Michel v.
Louisiana, 350 US. 91, 94-95, 100 L. Ed. 83, 76 S. Ct. 158
(1956) (court will not apply procedural bar rule that
"raises an insuperable barrier" to vindication of a
constitutional right).

Because the majority glosses over the reasons courts
have adopted the automatic reversal rule in jury
composition cases, I briefly outline them here. This circuit
has held that the remedy for improper denial of
peremptory challenges is automatic reversal, because "it
would be virtually impossible to determine whether the
denial of a peremptory challenge was harmless." United
States v. Annigoni, 96 F.3d 1132, 1144 (9th Cir. 1996) (en
banc).~ | Annigoni reasoned that because the very
purpose of peremptory challenges is to allow dismissal of
potential jurors for subjective, unidentifiable reasons, and
because the effect of a change in jury composition on jury

1. Our court’s application of a rule of automatic reversal is in
accord with the conclusion of other circuits to consider this question.
See United States v. Underwood, 122 F.3d 389, 392 (7th Cir. 1997),
cert. denied, 118 S. Ct. 2341 (1998) (automatic reversal appropriate
when due process violated by impairment of intelligent exercise of
peremptory challenges); United States v. Taylor, 92 F.3d 1313, 1325
(2d Cir. 1996), cert. denied, 519 U.S. 1093, 117 S. Ct. 771, 136 L. Ed.
2d 717, 117 S. Ct. 772 (1997) (impairment of right to exercise
peremptory challenges requires reversal); Kirk v. Raymark Indus., Inc.,
61 F.3d 147, 162 (3d Cir. 1995) (automatic reversal proper remedy in
civil case); Knox v. Collins, 928 F.2d 657, 661 (Sth Cir. 1991)
(impairment of right to exercise peremptory challenges requires
automatic reversal of state conviction); United States v. Cambara, 902
F.2d 144, 147-48 (ist Cir. 1990) (denial of peremptory challenge to
which statute entitles requires reversal).

22

deliberations cannot be determined, evaluation of the
effect of this type of error is impractical and impossible.
Id. at 1144-45. Therefore, impairment of the right to
exercise statutorily authorized peremptory challenges
requires no case-specific demonstration of actual
prejudice. Jd. at 1144-45, 1147. In Martinez-Salazar, we
took this analysis one step further, holding that the
improper denial of even one peremptory challenge
violates due process and requires automatic reversal,
whether or not an objectionable juror actually served on
the jury. See United States v. Martinez-Salazar, 146 F.3d
653, 658-59 (9th Cir. 1998).

Instead of being required to demonstrate an effect on
his verdict, Vansickel should, under our precedent, be
required to establish only "that his state counsel would
have challenged another juror or jurors had he been
aware of the remaining challenges." Hines v. Enomoto,
658 F.2d 667, 674 (9th Cir. 1981). This showing would
establish that his right was actually impaired by
demonstrating that he would have used additional
peremptory challenges if provided the opportunity.” In
this case, as the majority acknowledges, Vansickel’s lawyer.
met that standard; he demonstrated to the trial court’s
satisfaction that he would have used _ additional
peremptories had they been provided.

Here, although Vansickel did not receive the jury he
was entitled to and was thereby deprived of his right to a
fair trial, the majority nonetheless holds that in view of his
counsel’s procedural default our rules do not apply and
that in order to establish prejudice Vansickel must prove
that his counsel’s error actually affected the outcome of

2. A defendant may make such a showing by demonstrating that
he used all of the peremptory challenges that were provided to him.
See Martinez-Salazar, 146 F.3d at 658-59. -

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the proceeding.” However, application of such an actual

3. Vansickel makes a strong argument that the state’s rule should
not be treated as a procedural bar. California case law entitles a
defendant who has objected to an improper denial of a jury challenge
to automatic reversal, but otherwise requires a demonstration of
prejudice. See People v. Caro, 46 Cal. 3d 1035, 761 P.2d 680, 686-87,
251 Cal. Rptr. 757 (Cal. 1988). Although the district court
characterized this "prejudice" requirement as a procedural bar, the
rule actually operates to reverse the presumption of prejudice, not to
waive review of the merits of the claim. In fact, the California courts
have not termed this additional prejudice requirement a "procedural
bar" or a "procedural default" rule. It appears that a defendant who
fails to make a contemporaneous objection may still raise the
Statutory or constitutional claim, and the California courts will still
consider the merits, as long as the defendant can demonstrate that he
wanted to use additional challenges and was dissatisfied with the jury
composition - in other words, that the error had some prejudicial
effect on the rights of the defendant. See Caro, 46 Cal. 3d at 1047
(defendant cannot show prejudice when he made no objection and
gave no indication of dissatisfaction with the jury); People v. Crowe,
8 Cal. 3d 815, 506 P.2d 193, 204-05, 106 Cal. Rptr. 369 (Cal. 1973)
(no prejudice when defense attorney indicated satisfaction with jury).
However, in Vansickel’s case, the California court applied a different
prejudice standard, one that required that the petitioner demonstrate
that the denial of peremptory challenges affected the outcome of his
trial. Cf. People v. Johnson, 6 Cal. 4th 1, 859 P.2d 673, 682 (Cal.
1993) (barring any claim based on improper denial of peremptory
challenge when defendant failed to object); Buckley v. Chadwick, 45
Cal. 2d 183, 288 P.2d 12, 23 (Cal. 1955) (applying miscarriage of
justice standard when plaintiff improperly denied peremptory
challenge). Unless a procedural bar rule is “strictly or regularly
followed" by the state courts, a federal court should not apply it to
foreclose review of a petitioner’s claim. Hathorn v. Lovorn, 457 U.S.
255, 263, 72 L. Ed. 2d 824, 102 S. Ct. 2421 (1982) (quoting Barr v.
City of Columbia, 378 U.S. 146, 149, 12 L. Ed. 2d 766, 84S. Ct. 1734
(1964)). Moreover, in this case, the state court considered the merits
of Vansickel’s claim, finding that his right to peremptory challenges
was violated but that he could not demonstrate an effect on the jury’s
verdict. State court consideration of the merits of a defendant’s claim
means that there has been no procedural bar applied. See Yist v.
Nunnemaker, 501 U.S. 797, 801, 115 L. Ed. 2d 706, 111 S. Ct. 2590

24

prejudice standard constitutes an impossibility for
defendants. Moreover, it is not permissible to require
application of that standard when the error is one that we
have clearly stated is not susceptible of actual prejudice
analysis. Because we have held that there is no way to
ascertain the impact on the result of a trial, denial of due
process must be presumed prejudicial. See Riggins v.
Nevada, 504 U.S. 127, 137, 118 L. Ed. 2d 479, 112 S. Ct.
1810 (1992) (presuming prejudice when "efforts to prove
or disprove actual prejudice from the record before us
would be futile, and guesses whether the outcome of the
trial might have been different . . . would be purely
speculative").

The majority reaches its untenable position by
arguing that the procedural default at issue here involves
Strickland error and that Sirickland precludes the use of
the presumed prejudice rule. The majority is wrong. It
misconceives the nature of the Strickland error rule.
Contrary to the majority’s assumption, the prejudice
inquiry as articulated in Strickland is not limited solely to
ascertaining the error’s effect on the result of a trial -
rather, "the ultimate focus of the inquiry must be on the
fundamental fairness of the proceeding whose result is
being challenged." Strickland, 466 U.S. at 696. Requiring
a showing of prejudice that we know to be impossible

(1991) (if the last state court reaches the merits of a federal claim,
there is no procedural bar). In this case, the state court considered
Vansickel’s claim and rejected it on the merits, concluding that he
could not demonstrate prejudice. This weighs heavily against a
finding of procedural default. See McKenna v. McDaniel, 65 F.3d
1483, 1488-89 (9th Cir. 1995) (state court consideration of merits in
applying rule allowing consideration of certain constitutional issues
negates "independence" of state rule); Breechen v. Reynolds, 41 F.3d
1343, 1354 (10th Cir. 1994) (review of claim for fundamental error
renders state rule not independent).

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25

certainly cannot help the courts evaluate whether a trial
was fundamentally unfair.

In fact, Strickland itself acknowledges that "in certain
Sixth Amendment contexts, prejudice is presumed."
Strickland, 466 U.S. at 692. When the performance of
counsel has been so egregious as to amount to a
constructive denial of counsel, we presume prejudice. See
United States v. Cronic, 466 U.S. 648, 659-60 & n.25, 80 L.
Ed. 2d 657, 104 S. Ct. 2039 (1984) (when counsel "fails to
subject prosecution’s case to meaningful adversarial
testing," or counsel has been absent at critical stage,
prejudice is presumed); Lozada v. Deeds, 498 US. 430,
432, 112 L. Ed. 2d 956, 111 S. Ct. 860 (1991) (presuming
prejudice when counsel failed to file notice of appeal);
United States v. Swanson, 943 F.2d 1070, 1074 (9th Cir.
1991) (presuming prejudice when counsel conceded that
there was no reasonable doubt as to elements of crime).
Similarly, when counsel is burdened by an actual conflict
of interest, a defendant need only demonstrate that this
conflict had an adverse effect on counsel’s performance,
not on the outcome of the trial, since "it is difficult to
measure the precise effect on the defense of
representation corrupted by conflicting _ interests."
Strickland, 466 U.S. 668 at 692, 80 L. Ed. 2d 674, 104 S.
Ct. 2052. See Cuyler v. Sullivan, 446 U.S. 335, 349-50, 64
L. Ed. 2d 333, 100 S. Ct. 1708 (1980) ("[A] defendant who
shows that a conflict of interest actually affected the
adequacy of his representation need not demonstrate
prejudice in order to obtain relief."). Finally, when
employing Strickland’s prejudice standard would effectively
eviscerate the right, the Court presumes prejudice. See
Penson, 488 U.S. at 86 (presuming prejudice when
defendant was not represented on appeal because "finding
harmless error or a lack of Strickland prejudice in cases
such as this . . . would leave indigent criminal appellants
without any of the protections afforded by Anders.").

26

When it is not possible or practical to analyze
prejudice on a case-by-case basis and a presumption of
prejudice is required in order to protect an important
substantive right, the Strickland prejudice inquiry
“necessitates application of the presumed prejudice rule.
The Eighth Circuit recently held that when a counsel’s
performance has led to an error that is "not amenable to
harmless error analysis, but requires automatic reversal,"
prejudice must also be presumed for purposes of the
Strickland analysis. See McGurk v. Stenberg, 1998 U.S.
App. LEXIS 30985, No. 97-4253, 1998 WL 850128 at *3-4
(8th Cir. Dec. 10, 1998). Other courts have reached
similar conclusions when counsel’s error has affected the
jury trial mechanism. See, eg., Government of Virgin
Islands v. Weatherwax, 20 F.3d 572, 579-80 (3d Cir. 1994)
("Prejudice should not be presumed; but when juror
misconduct is coupled with the trial court’s failure to hold
a voir dire to determine the outcome of the misconduct
on the jury function, proof of actual prejudice is excused
and a new trial is warranted."); Hollis v. Davis, 941 F.2d
1471, 1483 (11th Cir. 1991) (presumption of Strickland
prejudice is warranted when attorney’s error resulted in
all-white jury, race was at issue in case, and trial transcript
was not available for review); Smith v. Gearinger, 888 F.2d
1334, 1338-39 (11th Cir. 1989) (presuming partiality of
juror in accord with state law for purposes of Strickland

inquiry).

4. However, courts are not in agreement on this issue. In a case
decided almost simultaneously with its decision in McGurk, indeed
only six days earlier, the Eighth Circuit reached a contrary result. In
Young v. Bowersux, 161 F.3d 1159, 1998 WL 834365 (8th Cir. 1998),
the court held that a defendant whose lawyer failed to object to
racially discriminatory peremptory challenges was required to
demonstrate a reasonable probability that the result of his trial would
have been different if counsel had raised the objection. Jd. at *2.
Neither the Young court nor the opinion on which it relied, Wright v.
Nix, 928 F.2d 270, 273 (8th Cir. 1991) (in dicta, stating that defendant

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The impracticability of attempting to analyze the
effect of jury composition error while excluding the rule of
presumed prejudice is well-illustrated by the majority’s
approach in this case. The majority does not argue that
the presence of the particular jurors that Vansickel would
have dismissed had no effect on the jury’s deliberations -
because, of course, there is no way for the majority to
know what role these jurors played. Instead, the majority
solely emphasizes the "overwhelming" nature of the
evidence of Vansickel’s guilt. However, as the Supreme
Court has made clear, analysis of the effect of an error on
a particular trial cannot properly focus exclusively on the
strength of the evidence against the defendant:

{T]he question is, not were [the jurors] right in
their judgment, regardless of the error or its
effect upon the verdict. It is rather what effect
the error had or reasonably may be taken to
have had upon the jury’s decision... . The
inquiry cannot be merely whether there was
enough to support the result, apart from the
phase affected by the error. It is rather, even so,
whether the error itself had substantial influence.

must demonstrate actual effect on result when counsel failed to object
to discriminatory use of peremptory challenges), addressed or even
acknowledged the practical question posed by its holding: how could
a petitioner possibly make such a showing in a case involving jury
composition error? The Eleventh Circuit has also required a
defendant to demonstrate a reasonable probability that the result of
the proceeding would have been different if counsel had been
competent, even in cases in which counsel’s error affected the
composition of the jury itself. Jackson v. Herring, 42 F.3d 1350,
1360-62 (11th Cir. 1995) (attorney failed to raise Swain objection).
It, too, failed to consider the critical question of how a defendant can
make a showing of prejudice in such a case.

28

Kotteakos v. United States, 328 U.S. 750, 764-65, 90 L. Ed.
1557, 66 S. Ct. 1239 (1946) (citations omitted). See also
Sullivan v. Louisiana, 508 U.S. 275, 279, 124 L. Ed. 2d
182, 113 S. Ct. 2078 (1993) ("The inquiry .. . is not
whether, in a trial that occurred without the error, a guilty
verdict would surely have been rendered, but whether the
guilty verdict actually rendered in this trial was surely
unattributable to the error. That must be so, because to
hypothesize a guilty verdict that was never in fact
rendered - no matter how inescapable the findings to
support that verdict might be - would violate the jury-trial
guarantee."); Brecht v. Abrahamson, 507 U.S. 619, 642-43,
123 L. Ed. 2d 353, 113 S. Ct. 1710 (1993) (Stevens, J.,
concurring) ("The habeas court cannot ask only whether
it thinks the petitioner would have been convicted even if
the constitutional error had not taken place. Kotteakos is
full of warnings to avoid that result."). The majority’s
disposition of Vansickel’s claim rests exclusively on its
assessment of the verdict that a constitutionally composed
jury would have reached, in direct conflict with the
Supreme Court’s admonitions to avoid such a hypothetical
eXeIcise.

The majority also suggests, without so holding, that
Vansickel probably could not demonstrate cause for his
default because his lawyer was not constitutionally
ineffective. This is clearly wrong: defense counsel missed
the most elementary statutory protection provided to
defendants. He unknowingly forfeited half of Vansickel’s
guaranteed allotment of peremptory challenges, "one of
the most important of the rights secured to the accused,"
Pointer v. United States, 151 U.S. 396, 408, 38 L. Ed. 208,
14 S. Ct. 410 (1894), due to his ignorance of this basic
Statutory protection. This error would not have been
difficult for counsel to avoid. A mere reading of the basic
peremptory challenge statute would have revealed that
capital defendants were guaranteed twenty peremptory

29

challenges. See Cal. Code Civ. Pr. § 231(a) (defendant
charged with offense punishable by death or life
imprisonment is entitled to twenty peremptory challenges).
Counsel’s failure to make even this minimal effort to
protect such an important right constitutes deficient
performance. See, Morris v. California, 966 F.2d 448,
454-55 (9th Cir. 1992) (ignorance of iaw and failure to
research legality of methamphetamine use was ineffective
assistance); Green v. United States, 972 F. Supp. 917, 920
(E.D. Pa. 1997) (failure to appeal improper denial of
Statutorily authorized peremptory’ challenge was
ineffective).

By requiring Vansickel to demonstrate that the
erroneous denial of half of his rightful allotment of
peremptory challenges substantially influenced the
outcome of his case, the majority has demanded an
impossible showing and _ therefore erected = an
insurmountable barrier to vindication of an important
constitutional right. Because rendering a consticutional
right unenforceable is an unacceptable result, the
presumption of prejudice that normally applies in a case
in which a criminal defendant has been denied statutorily
guaranteed peremptory challenges applies equally in the
case of Stnckland error. In jury composition cases,
whatever the context, the impossibility of proof of
prejudice is identical. By concluding otherwise, and
abandoning Hines, the majority erred. I therefore dissent.

APPENDIX B

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

MICHAEL EDWARD )
VANSICKEL, )

Petitioner-Appellant, ) No. 97-17143
)
)
)

DC# CV-95-01355-
WBS

Vv.

THEO WHITE, Warden, )
Respondent-Appellee. ) ORDER

)

Before: REINHARDT, NOONAN and THOMPSON,
CIRCUIT JUDGES.

Both sides have filed petitions for rehearing and
petitions for rehearing en banc. Judges Noonan and
Thompson voted to deny the petitions for rehearing filed
by the appellant Vansickel and by the appellee White.
Judges Noonan and Thompson also recommended denial
of the petitions for rehearing en banc filed by the
appellant Vansickel and by the appellee White.

Judge Reinhardt voted to grant the petition for
rehearing and the petition for rehearing en banc filed by
the appellant Vansickel. Judge Reinhardt voted to deny
the petition for rehearing and petition for rehearing en
banc filed by the appellee White.

The full court was advised of the petitions for
rehearing and for rehearing en banc filed by the appellant
Vansickel and by the appellee White. No judge of the
court requested a vote on either of the petitions for
rehearing en banc. Fed.R. App.P.35(b).

The petitions for rehearing and for rehearing en banc
filed by the appellant Vansickel and by the appellee White
are denied.

APPENDIX C

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

MICHAEL EDWARD )
VANSICKEL, ) NO. CIV. S-95-1355
) WBS JFM P
Petitioner, )
)
V. ) FINDINGS AND
) RECOMMENDATIONS
THEO WHITE, et al., )
)
Respondents. )
)

Petitioner is a state prisoner proceeding by

counsel with an application for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254.

On May 25, 1992, the Tehama County Superior

Court convicted pet tioner of first degree murder with the
special circumstance of lying-in-wait. Petitioner challenges
his coriviction on the following grounds:

(1) The trial court erred in denying petitioner’s
motion to exclude his statements;

(2) The trial court erred in denying petitioner’s
motion for a judgment of acquittal as to the
special c*~cumstance;

(3) The trial court erred in instructing the jury;
(4) The evidence was insufficient to support the
special circumstance finding;

(5) The trial court erred in denying the motion
for new trial;

(6) Petitioner was denied the effective assistance
of counsel;

(7) Petitioner was not competent to stand trial;
(8) The cumulative effect of the errors requires
reversal.

PROCEDURAL HISTOR ¥¢*

Petitioner was convicted of first degree murder
with a lying-in-wait special circumstance on May 25, 1992.
On July 13, 1992, the Tehama County Superior Court
sentenced petitioner to life imprisonment without the
possibility of parole. Petitioner appealed his conviction on
July 22, 1992. The Third District Court of Appeal of
California affirmed petitioner’s conviction on April 29,
1994. The California Supreme Court denied review on
July 21, 1994. Petitioner’s applications for a writ of
habeas corpus were denied by the Third District Court of
Appeal of California on October 6, 1994, and by the
California Supreme Court on February 22, 1995.

Petitioner filed an application for a writ of
habeas corpus with this court on July 26,1995.

FACTUAL BACKGROUND*

On September 30, 1991, around 11:25 p.m.,
[petitioner] and the victim, Mark Howard, were
in a car that crashed into a drainage ditch in
Corning. Shortly afterwards, a resident in the
area spotted [petitioner] "scooting across" a
nearby lawn stating that his friend had been

1. The procedural history set forth here is taken from the
petition at 2-4 and respondents’ answer at 5-6.

2. The factual background is taken from the unpublished opinion
of the California Court of Appeal, Third Appellate District, filed on
April 29, 1994.

shot, he didn’t do it, and he needed a ride.
[Petitioner] also said not to call the police.

Police found Howard still in the car. He

had no vital signs and his face was covered with
blood.

[Petitioner] was found lying in a driveway.
When officers approached, [petitioner] told them
that he had the murder weapon and that they
would not believe him. When the officers asked
what he meant by the "murder weapon,"
[petitioner] displayed a gun barrel which he had
wrapped in a blood-soaked T-shirt in his right
hand.

The officers took cover after [petitioner]
refused to drop the gun. [Petitioner] repeatedly
stated that the officers would never believe him
and then said he was going to shoot himself.
The officers then heard a shot and the sound of
a gun hitting the ground. When the officers
again approached [petitioner], they found that
he had not shot himself but he had broken his
hip in the car accident. One officer noted that
during this encounter, [petitioner] acted
erratically and did not seem to respond in logicai
fashion to the request to put the gun down.
Another officer noted that [petitioner] appeared
emotionally upset but understood what the
officers were saying. The officers recovered the
gun, a Ruger .22-caliber revolver.

Shortly thereafter, at just past midnight,
Corning Police Officer Charles Fiske interviewed
[petitioner] at the hospital. [Petitioner] told
Fiske that he and Howard went to Woodson

Park where Howard saw a friend of his by the
name of Dan. The three of them drove to get a
beer. While they were driving, [petitioner] heard
Dan cock a gun and say, "Bend forward. Mark’s
a rat." Dan then shot Howard. The car crashed.
Dan got out and ran away, and [petitioner] tried
to pursue him.

Agent Gerald Finchum interviewed
[petitioner] in the hospital the next morning
(Oct. 2, 1991). [Petitioner] stated that his
girlfriend had told him that Howard had been
telling people that [petitioner] was a snitch.
[Petitioner] added that Howard had been seeing
his girlfriend before and after the two of them
broke up around September 25.

Later that evening (still October 2, 1991),
around 7:20 p.m. Agent Todd Lofgren
interviewed [petitioner] and tape-recorded the
interview. [Petitioner] repeated the story about
Dan, adding that he ([petitioner]) had initially
encountered Howard at Stacey Craig’s home and
that during the drive [petitioner] was seated in
the middle of the three men on the console.

Billie Jo Ruspoli, the [petitioner’s] former
girlfriend, visited [petitioner] in the hospital. At
first, he told her that a person named Dan was
in the car and had shot Howard. Ruspoli later
pressed for an explanation and [petitioner]
confided that he had "put two rounds into Mark
[Howard]." [Petitioner] explained that Howard
had "messed up with his connection" and had
called him a rat. [Petitioner] also told Ruspoli
that Dan was "just someone [petitioner] made up
so the cops couldn’t put it on [him]."

Ruspoli had a romantic relationship with
[petitioner] during the summer of 1991. While
[petitioner] was out of town for a few weeks in
August of that year, Ruspoli spent some time
with Howard. In September, [peti‘ioner],
thinking that Ruspoli and Howard were
romantically involved, confronted the two of
them at the home of a _ mutual friend;
[petitioner] drew a knife and told Howard that
he ought to slit his throat. Ruspoli intervened
and explained that "it wasn’t what [petitioner]
thought it was;" [petitioner] then apologized to
Howard.

Ruspoli began hearing rumors that
[petitioner] was a pelice informant. At one
point, [petitioner] said he was "going to slit the
throat of some rat." Ruspoli broke off her
relationship with [petitioner] on September 27
and he became angry. She continued to spend
time with Howard.

A pathologist testified that Howard died
from two gunshot wounds to the head. An
examination of gunpowder residue indicated the
gun was fired at a distance from 1 to 42 inches.
The bullet fragments removed from Howard’s
head were consistent with a .22 caliber.

Three or four days before the shooting,
[petitioner] barged into the home of Bonnie
Puccetti, looking for Howard. [Petitioner]
appeared anxious and upset, but left after being
told that Howard was not there.

On the evening of the _ shooting,
September 30, Howard visited Ruspoli. He left

around 11 p.m. end went to the home of Stacey
Craig and Donna Herbst. He was there for
about half-an-hour, when someone knocked on
the door. Howard answered the door and then
told Craig and Herbst, who were in another
room, that he had to "give Mike a ride. I'll be
back."

An expert in accident investigation, William
Killion, opined that Howard’s car contained only
the driver and one passenger when it crashed.
The passenger, however, was either trying to get
into the driver’s area or was partially straddling
the console area when the crash occurred.
{[Petitioner’s] injuries were consistent with his
being seated on or near the console.
Additionally, [petitioner’s] hand injury was
consistent with holding a weapon when the car
crashed.

[Petitioner] had borrowed the gun used to
shoot Howard from Thomas Walker who had
borrowed it from George Bishop. The day
before Howard was shot, Walker contacted
[petitioner] to retrieve the gun but at
[petitioner’s] request allowed him to keep it for
one more day.

In late October 1991, while [petitioner] was
in jail awaiting trial, he became upset about
something he had read in the Penal Code and
wanted to talk to someone about his case. He
said he had shot a man. He stated he was angry
and had to shoot him, and did not mind
admitting this in court because he had already
spoken to Officer Fiske about it. He also stated

that even though he knew the man was dead, he
shot him a second time.

Two notes that [petitioner] had written in
jail were admitted into eviderice. One stated in
part:

"I think I fucked up by telling them
that there was one more person in the car
that he shot Mark. ! gave them a fony [sic]
description an [sic] what he was wearing.
Fuck pony man when my face whent [sic]
through the windshield of the car an [sic]
my hip got broke in half I don’t know I
really don’t know what whent [sic] on after
that but all I know is when I finally came to
I was serounded [sic] by cops an [sic] I still
had the fucken [sic] gun in my hand. [4] I
don’t know how, how in the fuck the car
started going because I told him to stop the
car let’s get high an [sic] as soon as the car
stopped bam bam an [sic] the fucken [sic]
car just fucken [sic] took fucken [sic] off an
[sic] the crash smash an [sic] ouch you know
so I had to say some then [sic] to the cops
so | made up this Dan... ."

Timothy Morton testified for the defense
that he spoke with Howard the day before he
died. Howard implied that [petitioner] was an
informant; Howard was also angry and made
threats against [petitioner]. Later that day,
Morton saw [petitioner] and told him that
Howard was looking for him and had accused
him of being a snitch. [Petitioner] became

angry.

At trial, [petitioner] conceded he had shot
Howard. By stipulation, a document showing
the results of a toxicology report on [petitioner]
was admitted into evidence. The document
disclosed that on October 1, 1991, at 11:15 a.m.,
a urine sample was taken from [petitioner]
indicating the presence of a cocaine metabolite,
THC metabolites, amphetamine, and
methamphetamine.

ANALYSIS

A writ of habeas corpus is available under 28
U.S.C. § 2254 only on the basis of some transgression of
federal law binding on the state courts. Middleton v.
Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v.
Isaac, 456 U.S. 107, 119 (1982)), cert. denied, 478 U.S.
1021 (1986); Gutierrez v. Griggs, 695 F.2d 1195, 1197 (9th
Cir. 1983). It is not available for alleged error in the
interpretation or application of state law. Estelle v.
McGuire, 502 U.S. 62, 67-68 (1991); Givens v. Housewright,
786 F.2d 1378, 1381 (9th Cir. 1986); Middleton, 768 F.2d
at 1085.

I. Ground One: Miranda Violations

Petitioner challenges the trial court’s admission
of statements he mace to Agent Lofgren. Petitioner
asserts that Agent Lofgren did not read him his rights, as
required by Miranda v. Arizona, and that Agent Lofgren
elicited statements from him after he invoked his right to
remain silent. -

A. Adequacy of Miranda Warnings

Petitioner claims Agent Lofgren failed to advise
him of his Miranda rights before he made incriminating

statements, in violation of petitioner’s rights guaranteed by
the Fifth, Sixth, Eighth, and Fourteenth Amendments to
the United States Constitution.

In Miranda, the United States Supreme Court
held that, prior to custodial interrogation of a criminal
defendant, the defendant must be warned of his right to
remain silent, that any statement he makes can be used
against him, and that he has the right to an attorney,
either retained or appointed. Miranda v. Arizona, 384
U.S. 436, 444 (1966). A criminal defendant may waive
these rights if the waiver is made voluntarily, knowingly
and intelligently. Jd. "[U]nless and until such warnings
and waiver are demonstrated by the prosecution at trial,
no evidence obtained as a result of interrogation can be
used against him." Jd. at 479. In establishing this
standard, the Supreme Court was concerned with ensuring
that the accused is aware of these rights. /d. at 472. In
cases where there is direct evidence that a criminal
defendant was aware of these rights, he cannot claim that
he was not apprised of the Miranda rights, even if the
Miranda warnings in and of themselves were insufficient.
United States v. Pheaster, 544 F.2d 353, 366 (9th Cir. 1976),
cert. denied, 429 U.S. 1099 (1977).

In the instant case, Officer Fiske questioned
petitioner the day before Agent Lofgren did so.
According to Officer Fiske’s police report, when he started
to advise petitioner of his rights prior to the questioning,
petitioner replied, "Yeah, I know them, I can say them
better than you can... ." (Resp.’s Ans., Ex. A at 8.)
Officer Fiske again tried to give petitioner his Miranda
warnings and asked if petitioner understood his rights, to
which petitioner responded that he understood and would
talk to Officer Fiske about the incident. (/d. at 9.) At
trial, Officer Fiske iestified to this account of the facts.
(Id.) The California Court of Appeal found that the state
had proven by a preponderance of the evidence that
Officer Fiske had given petitioner Miranda warnings and

10

that petitioner knowingly and voluntarily waived his rights.
(Id. at 10.)

Agent Lofgren did not advise petitioner of his
rights when he questioned petitioner the day after Officer
Fiske’s interview of petitioner. At trial, petitioner moved
to exclude statements he made to Agent Lofgren. In
response, the prosecutor argued that the waiver of
petitioner’s rights prior to Officer Fiske’s interrogation
applied to petitioner’s statements to Agent Lofgren as
well. The record reflects that Agent Lofgren asked
petitioner whether he had been advised of his Miranda
rights. (/d. at 9.) Petitioner responded that Officer Fiske
had advised him of his fights and that he had waived
them. (/d.) The trial court found that Agent Lofgren
properly advised petitioner of his rights by referring to
Officer Fiske’s advisement the day before, thus ensuring
that petitioner knew his rights, and by determining that
petitioner had waived his rights before speaking to Officer
Fiske.

In Pheaster, the court found that the defendant’s
act of interrupting the agent giving him Miranda warnings
and insisting that he knew his rights constituted direct
evidence that the defendant knew his rights. Pheaster, 544
F.2d at 366. In addition, the Ninth Circuit has recognized
that warnings given by one interrogator can apply to a
subsequent interrogation by a different officer. Maguire v.
United States, 396 F.2d 327, 331 (9th Cir. 1968), cert.
denied, 393 U.S. 1099 (1969). In Maguire, the court found
that although a second interrogator’s Miranda warnings to
the appellant were insufficient, the appellant nevertheless
knew his rights because the first interrogator had properly
given him Miranda warnings three days beforehand. Id.
Accordingly, this court finds that the trial court did not err
in denying petitioner’s motion to exclude the statements
made to Agent Lofgren on the ground that Agent Lofgren
failed to read petitioner his Miranda rights.

a

1]

B. Invocation of Right to Remain Silent

Petitioner claims that some of the statements he
made to Agent Lofgren were inadmissible because he had
invoked his right to remain silent.

A custodial interrogation must cease if an
individual being questioned indicates that he wishes to
remain silent. Miranda, 384 U.S. at 473-74. Statements
made after an individual invokes the right to remain silent
are admissible only when the '"right to cut off questioning
[is] scrupulously honored.” United States v. Moreno-Flores,
33 F.3d 1164, 1169 (9th Cir. 1994) (quoting Michigan v.
Mosley, 423 U.S. 96, 104 (1975)).

The portion of the interrogation in question
occurred near the end of the interview and proceeded as
follows:

Lofgren: You saw him standing outside the car,
was he tall or short?

VanSickel: (Pause) I don’t know. I’m through
talking man. It don’t matter. Book me for
murder 1, I give fuck. You're going to do it
anyway. If they’d have told me last night they
can’t find the third party and they’re gonna book
you for it, so you might as well get it over with.

Lofgren: Who told you that?

VanSickel: Officer Fiske. You might as well get
your fuckin’ game over with. And [’ll put the
word out on the street and have him tooken [sic]

care of myself.

Lofgren: You don’t want to talk anymore?

petits Pant i Efi Sa Ri Si IE i ne TN lt A. a eS

12

VanSickel: Nope. (Pause) They should have
killed me last night, so I wouldn’t have to go
through this shit. I didn’t have the gutts [sic] to
shoot myself and them [sic] mother fuckers
didn’t have the gutts [sic] to shoot me either.

Lofgren: Why did you want to shoot yourself?

(RT Vol. I, Ex. 1 at 8.)

At trial, petitioner asserted that he had invoked
his right to remain silent. He objected to the admission
of his statements to Agent Lofgren subsequent to the
alleged invocation of his fight to remain silent. The trial
judge overruled petitioner’s objection and admitted the
statements, explaining that "Mr. Vansickle [sic] was in part
answering the questions, in part telling a story that he
wanted to tell that do [sic] not always respond to the
question, in part just indicating his innocence or his
frustration, his feeling that it was futile to do anything or
say anything." (RT 261.) The record reflects that
petitioner said he was "through talking," but continued to
talk. Agent Lofgren attempted to clarify by asking
petitioner, "You don’t want to talk anymore?" Petitioner
responded "nope," but again continued to talk. On this
record, this court finds that the trial court did not err in
admitting petitioner’s statements to Agent Lofgren
subsequent to the alleged invocation of the fight to remain
silent.

Moreover, petitioner would not be entitled to
habeas relief even if this court were to find that petitioner
invoked his fight to remain silent, that Agent Lofgren did
not scrupulously honor petitioner’s invocation of the fight,
and that the trial court improperly admitted petitioner’s
statements to Agent Lofgren after the invocation of the
fight to remain silent. The improper admission of a
confession is trial error. Arizona v. Fulminante, 499 US.
279, 310 (1991). For a trial error to be reversible on

2
;
4
4
q
z

13

federal habeas review, the error must have had a
"substantial and injurious effect or influence’ in
determining the jury’s verdict." Brecht v. Abrahamson, 507
US. 619, 638 (1993). In the instant case, petitioner
invoked his right to remain silent near the end of the
interview. Further, petitioner’s statements to Agent
Lofgren were almost identical to his statements to Officer
Fiske. (RT Vol. I, Ex. 1 at 8-11, RT 351-52.) Under
these circumstances, the court is unable to find that the
admission of petitioner’s statements to Agent Lofgren
following petitioner’s alleged invocation of his right to
remain silent had a substantial and injurious effect or
influence on the jury’s verdict.

Accordingly, this court finds that the trial court
did not violate petitioner’s constitutional rights by
admitting the statements made by petitioner to Agent
Lofgren.

II. Grounds Two and Four: Insufficient Evidence as to
the Special Circumstance

Along with first degree murder, petitioner was
convicted of the special circumstance of lying-in-wait.
Petitioner claims that the prosecution failed to produce
sufficient evidence to support a finding of lying-in-wait
beyond a reasonable doubt. Petitioner also claims that
because the evidence was insufficient, the trial court erred
in denying his motion for acquittal as to the special
circumstance.

A conviction based on insufficient evidence
violates due process. Jn re Winship, 397 U.S. 358, 365
(1970). When a challenge is brought alleging insufficient
evidence, federal habeas corpus relief is available only "if
it is found that upon the record evidence adduced at the
trial no rational trier of fact could have found proof of
guilt beyond a reasonable doubt." Jackson v. Virginia, 443
U.S. 307, 324 (1979). In conducting its review, the court

14

is required to "consider{] all the evidence in the light most
favorable to the prosecution and defer[] to the trier of
fact’s presumed resolution of conflicting inferences most
favorably to the prosecution." Payne v. Borg, 982 F.2d 335,
339 (9th Cir. 1992), cert. denied, 510 U.S. 843 (1993). A
reviewing court "faced with a record of historical facts
that supports conflicting interests must presume -- even if
it does not affirmatively appear on the record -- that the
trier of fact resolved any such conflicts in favor of the
prosecution, and must defer to that resolution.” Wright v.
West, SOS U.S. 277, 296 (1992) (quoting Jackson, 443 U.S.
at 319). The trier of fact is entitled to disbelieve a
defendant’s uncorroborated testimony, to take into
account a defendant’s demeanor when testifying, and to
consider whether disbelieved testimony may be affirmative
evidence of guilt? Wright, 505 U.S. at 296.

The standards set forth above "must be applied
with explicit reference to the substantive elements of the
criminal offense as defined by state law." Jackson, 443
U.S. at 324 n.16. Under California law, there are three
requirements to prove the lying-in-wait special
circumstance: (1) concealment of purpose; (2) substantial
period of watching and waiting for an opportune time to
act; and (3) immediately thereafter a surprise attack on an
unsuspecting victim from a position of advantage. People
v. Morales, 48 Cal. 3d 527, 557 (1989). A finding of these
elements beyond a reasonable doubt justifies distinguishing
the murder from an ordinary premeditated murder by
treating it as murder with a special circumstance. Id.

Concealment of purpose can be shown by an
ambush or "by the creation of a situation where the victim
is taken unawares even though he sees his murderer." Jd.
at 554. The record reflects that shortly before the
murder, Howard was at the home of Stacey Craig and
Donna Herbst. (RT 233.) After answering a knock at the
door, Howard told Craig and Herbst that he needed to
leave in order "to give Mike a ride." (RT 235.) While

15

~~

driving with petitioner, petitioner asked Howard to stop
the car so that they could "get high." (RT 412.)
Petitioner shot Howard as soon as the car stopped. (/d.)
Thus, sufficient evidence existed to allow a rational jury to
find that petitioner concealed his purpose to murder
Howard by luring Howard from Craig and Herbst’s home
and convincing Howard to stop the car in order to use
drugs.

The second element of the lying-in-wait special
circumstance is that there was a substantial period of
watching and waiting for an opportune time to act.
Morales, 48 Cal. 3d at 557. The record reflects that a few
days prior to the murder petitioner borrowed_a gun from
Thomas Walker "just for a day or two." (RT 190-92.)
When Walker asked for the gun back on the day before
the murder, petitioner requested permission to borrow the
gun for another day. (RT 192-93.) Petitioner entered
Bonnie Puccetti’s home without knocking a few days
before the murder. (RT 365-66.) Petitioner, sounding
upset, asked Puccetti where Howard was. (RT 366,
386-87.) When Puccetti told petitioner that Howard was
not there, petitioner left immediately. (RT 366-67.) On
the night of the murder, petitioner rode with Howard in
the car and waited until they had driven away from Craig
and Herbst’s home and Howard had stopped the car
before he shot Howard. (RT 412.) Based on the above,
this court finds sufficient evidence for a rational jury to
find that petitioner watched and waited for an opportune
time to murder Howard.

The third element the prosecution must show is
that the petitioner launched a surprise attack on, an
unsuspecting victim from a position of advantage.
Morales, 48 Cal. 3d at 557. The record reflects that
petitioner convinced Howard to stop the car in order to
use drugs, whereupon petitioner immediately shot Howard
twice. (RT 412.) This evidence supports the inference
that Howard, by stopping the car in order to use drugs

16

with petitioner, was an unsuspecting victim and that
petitioner’s act of shooting Howard as soon as the car
stopped was a surprise attack. As a result, a rational jury
could find that the prosecution established this third
element beyond a reasonable doubt.

Accordingly, this court finds that sufficient
evidence existed for a rational jury to find the lying-in-wait
circumstance beyond a reasonable doubt. Because the
evidence was sufficient, the trial court did not err in
denying petitioner’s motion for judgment of acquittal as ’to
the lying-in-wait special circumstance.

IJ. Ground Three: Jury Instruction Error”

Federal habeas corpus relief is not available for
failure to give a jury instruction unless the failure so
infects the entire trial that the resulting conviction violates
due process, rendering the trial fundamentally unfair.
Estelle v. McGuire, 502 U.S. 62, 71-72 (1991); Duckett v.
Godinez, 67 F.3d 734, 745-46 (9th Cir. 1995), cert. denied,
__ US. __, 116 S. Ct. 1549 (1996). The federal court
must evaluate jury instructions "in the context of the
overall charge to the jury as a component of the entire
trial process." Prantil v. California, 843 F.2d 314, 317 (9th
Cir.) (citing Bashor v. Risley, 730 F.2d 1228, 1239 (9th
Cir.), cert. denied, 469 U.S. 838 (1984)), cert. denied, 488
U.S. 861 (1988). Where the issue involves alleged failure
to give an instruction, the petitioner’s burden is "especially
heavy" because "[a]n omission, or an_ incomplete
instruction, is less likely to be prejudicial than a

3. Respondents argue that this court should apply the provisions
of the Antiterrorism and Effective Death Penalty Act of 1996 to the
instant case. The Ninth Circuit has held that this Act does not apply
retroactively to cases filed prior to April 24, 1996. Jeffries v. Wood,
103 F.3d 827 (9th Cir. 1996). Because the instant petition for writ of
habeas corpus was filed on July 26, 1995, the Act does not apply.

i

ae Oe aa ees

17

misstatement of the law." Henderson v. Kibbe, 431 U.S.
145, 155 (1977).

A. Voluntary Manslaughter Instruction

Petitioner claims that the trial court modified the
instruction on _ provocation to exclude voluntary
manslaughter to his detriment. CALJIC 8.73 reads:

If the evidence establishes that there was
provocation which played a part in inducing an
unlawful killing of a human being, but the
provocation was not sufficient to reduce the
homicide to manslaughter, you should consider
the provocation for the bearing it may have on
whether the defendant killed with or without
deliberation and premeditation.

Petitioner challenges the omission of the _ italicized
language above. Petitioner claims that this omission and
the refusal by the trial court to instruct the jury on
voluntary manslaughter violated his right to due process.
He argues that there was sufficient evidence of
provocation based on his jealousy of the relationship
between Howard and Ruspoli and that this evidence
warranted a heat of passion instruction to the jury, which
could have reduced his conviction to voluntary
manslaughter.

In order to be entitled to a_ voluntary
manslaughter instruction based on heat of passion, a
criminal defendant must establish two things. First, there
must be evidence of sufficient provocation which led to
the act. People v. Sedeno, 10 Cal. 3d 703, 719 (1974).
The provocation must be "to such an extent as would
render ordinary men of average disposition liable to act
rashly or without due deliberation and reflection, and from
this passion rather than judgment." Feople v. Wharton, 53
Cal. 3d 522, 570 (1991) (citing People v. Rich, 45 Cal. 3d
1036, 1112 (1988)).

18

In the instant case, Ruspoli began spending time
with Howard in August, 1991. (RT 208.) Petitioner once
confronted Howard with a knife because he believed that
Howard ard Ruspoli were romantically involved.
(RT 209-10.) When Ruspoli broke off her relationship
with petitioner, petitioner became angry. (RT 213.)
Petitioner had previously told Ruspoli that if she were
ever to leave him, "people in town were going to go
down." (RT 218.) California courts have held that the
mere act of dating another by a person formerly involved
with a criminal defendant does not constitute sufficient
provocation that would cause a reasonable person to act
rashly without due deliberation and reflection. People v.
Hyde, 166 Cal. App. 3d 463, 473 (1985). Thus, petitioner’s
belief that Ruspoli was romantically involved with Howard
did not constitute sufficient provocation to support the
heat of passion defense.

Second, in order to establish the heat of passion
defense, "the actor [must] be under the actual influence of
a strong passion at the time of the homicide." People v.
Wickersham, 32 Cal. 3d 307, 327 (1982). The existence of
such a strong passion eliminates malice, reducing a
homicide to voluntary manslaughter. People v. Sedeno, 10
Cal. 3d 703, 719 (1974). "[D]efendant’s jealousy must be
such as to suggest he did not either intend to kill or act in
conscious disregard of a substantial probability that death
would result." Hyde, 166 Cal. App. 3d at 473. Any notion
that a criminal defendant lacked intent due to heat of
passion is eroded when “sufficient time has elapsed
between the provocation and the fatal blow for passion to
subside and reason to return... ." Wickersham, 32 Cal.
3d at 327 (quoting CALJIC 8.42). In the instant case,
evidence of watching and waiting shows the existence of
sufficient time for passion to subside and specific intent to
kill to develop. Petitioner borrowed a gun a few days
prior to the killing. (RT 190-92.) Petitioner also had
sought Howard prior to the murder, entering Bonnie

nto Aad eae ne

19

Puccetti’s home without knocking. (RT 365-66.) On the
night of the killing, petitioner asked Howard to give him
a ride home and during the ride petitioner waited until
Howard stopped the car to shoot him. (RT 412.) The
record does not reflect sufficient provocation and
demonstrates that petitioner did not kill Howard under
the actual influence of strong passion. Accordingly, the
trial court’s refusal to instruct the jury on voluntary
manslaughter based on heat of passion did not render the
trial so fundamentally unfair as to deprive petitioner of
due process.

B. Voluntary Intoxication Instruction

Petitioner claims that the trial court improperly
failed to instruct the jury on voluntary intoxication as it
relates to specific intent. Because California no longer
recognizes the defense of diminished capacity, voluntary
intoxication is relevant only to show that a criminal
defendant lacked specific intent to commit a crime.
People v. Saille, 54 Cal. 3d 1103, 1119 (1991). A court
must instruct the jury on intoxication "upon request when
there is evidence supportive of the theory, but [such
instructions] are not required to be given sua sponte." Jd.
In the instant case, the record reveals that petitioner did
not request an instruction for voluntary intoxication.
Because the trial court was not required to instruct the
jury on intoxication in the absence of such a request, the
court’s failure to do so did not render the trial
fundamentally unfair and did not violate petitioner’s right
to due process.

C. Failure to Define and Instruct on Provocation

Petitioner claims that the trial court instructed
the jury that it could consider provocation in distinguishing
between first and second degree murder but did not offer

20

an instruction defining provocation, as a result of which
the jury could not properly apply the concept of
provocation. Therefore, petitioner alleges, it was error for
the trial court to refuse to give petitioner’s proposed
special instruction, which defines provocation and gives
the jury guidance as to how to apply the concept of
provocation. Petitioner’s proposed instruction reads:

If the provocation aroused the passion of
defendant sufficiently to negate premeditation
and deliberation on his part, and if insufficient
time elapsed between the provocation and the
fatal blow for defendant’s passion to subside and
his reason to return, then the homicide, if
murder would be of the second degree.

a ce et nt, a a A a aE I Sl Ra

You are entitled to consider the defendant’s
subjective state of mind in this regard and are
not required to consider whether passion would
be aroused in the mind of an _ ordinarily
reasonable person in the same circumstances.

(CT 112.)
The trial court instructed the jury on first degree
murder and provocation as follows:

a Seat sr

All murder which is perpetrated by any kind
of willful, deliberate, and premeditated killing
with express malice aforethought is murder of
the first degree

Pe ee ee ee ee Oe

a]

If you find that the killing was preceded and
accomplished by a clear, deliberate attempt --
intent on the part of the Defendant to kill, which
is the result of deliberation, premeditation, so

21

that it must have be [sic] formed upon
pre-existing reflection and not under a sudden
heat of passion or other condition precluding the
idea of deliberation, it is murder of the first
degree.

The true test is not the duration of time, but
rather the extent of the reflection. A cold,
calculated judgment and decision may be arrived
at in a short period of time, but a mere
unconsidered and rash impulse, even though it
include [sic] an intent to kill, is not such
deliberation and premeditation as will fix an
unlawful killing as murder of the first degree.

To constitute a deliberate and premeditated
killing, the slayer must weigh and consider the
questions of killing and the reasons for and
against such choice and, having in mind the
consequences, he decides to and does kill.

Murder of the second degree is the unlawful
killing of a human being with malice
aforethought when there’s manifested an
intention to unlawfully to [sic] kill a human being
but the evidence is insufficient to establish
deliberation and premeditation.

If you are convinced beyond a reasonable
doubt that the crime of murder has been
committed by a Defendant, but you have a
reasonable doubt whether such murder was of
the first or of the second degree, you must give

22

the Defendant the benefit of that doubt and
return a verdict fixing the murder as of the
second degree.

When the evidence shows the existence of
provocation that played a part in inducing the
unlawful killing of a human being, you may
consider the evidence of provocation for such
bearing as it may have on the question of
whether the murder was of the first or second
degree.

(RT 545-46.)

The trial court offered precise definitions for first
and second degree murder and instructed the jury that a
finding of first degree murder required them to find no
existence of a condition precluding deliberation by the
petitioner. After discussing and defining the requirements
of premeditation and deliberation for first degree murder,
the court also instructed the jury that it could consider any
evidence of provocation in deciding whether the murder
was of the first degree.

After evaluating the jury instructions as a whole,
this court finds that the trial court gave sufficient
instructions to enable the jury to consider the role of
provocation in determining whether petitioner committed
first or second degree murder. Due process did not
require the trial court to elaborate furthey, and the trial
court’s refusal to give petitioner’s proposed instruction did
not render the trial so fundamentally unfair as to deprive
petitioner of his right to due process.

D. Failure to Modify the Special Circumstances

Instruction

Petitioner claims that the trial court improperly
instructed the jury using the language of CALJIC 8.81.15.

23

This instruction informed the jury on the standard for
finding the special circumstance of murder while lying in
wait. The trial court instructed the jury:

To find the special circumstance, referred to
in these instructions as murder while laying [sic]
in wait, is true, each of the following facts must
be proved:

1. That the Defendant intentionally killed
the victim.

2. That the murder was committed by the
Defendant was [sic] lying in wait.

The term "while lying in wait" within the
meaning of the law of special circumstances is
defined as awaiting [sic] and watching for an
opportune time to act, together’ with
concealment by ambush or some other secret
design to take the other person by surprise even
though the victim is aware of the murderer’s
presence ....

yas However, when a _ Defendant
intentionally murders another person, under
circumstances which include (1) a concealment
of purpose, (2) a substantial period of watching
and waiting for an opportune time to act, and
(3) immediately thereafter, a surprise attack on
an unsuspecting victim from a position of
advantage, a special circumstance of murder
while lying in wait has been established.

:
i
:
}
:
|

a4

Further, each fact essential to complete a
set of circumstances necessary to establish the
truth of the special circumstance must be proved
beyond a reasonable doubt.

(RT 549-51.)

Under California law, there are three
requirements to prove’ the lying-in-wait special
circumstance: (1) concealment of purpose; (2) substantial
period of watching and waiting for an opportune time to
act; and (3) immediately thereafter a surprise attack on an
unsuspecting victim from a position of advantage. People
v. Morales, 48 Cal. 3d 527, 557 (1989). A finding of these
elements beyond a reasonable doubt justifies distinguishing
the murder from an ordinary premeditated murder by
treating it as murder with a special circumstance. Id. A
review of the instructions as a whole reveals that the trial
court gave the jury the proper standards under California
law for finding a lying-in-wait special circumstance.
Further, this court has found that sufficient evidence
existed for a rational jury to find beyond a reasonable
doubt that petitioner murdered Howard while lying in
wait. Accordingly, the trial court’s use of CALJIC 8.81.15
did not render the trial so fundamentally unfair as to
deprive petitioner of his right to due process guaranteed
by the federal constitution.

IV. Ground Five: Trial Court’s Denial of Petitioner’s
Motion for a New Trial

Following his conviction, petitioner filed a motion
for a new trial. Petitioner argued that the trial court
allowed him only ten peremptory challenges during jury
selection, while California Code of Civil Procedure § 231
entitles a criminal defendant to twenty peremptory
challenges when the defendant is on trial for an offense
which is punishable by life imprisonment. (CT 143-50.)

ites:

25

The trial court denied the motion for a new trial.
(CT 156.)

The record contains an _ indication that
petitioner’s counsel, during a conference prior to the trial,
stated that it was his understanding that petitioner was
entitled to ten peremptory challenges, and the trial judge
agreed. (RT 578.) Petitioner used ten peremptory
challenges during jury selection. (CT 148.) Subsequent to
the jury verdict, the trial judge realized that petitioner was
entitled to twenty peremptory challenges. (RT 580.) The
judge immediately informed both parties of the error.
(id.) Petitioner then filed his motion for a new trial.
(CT 143.) Petitioner’s counsel declared that during the
conference he asked the trial judge how many peremptory
challenges he was allowed, and the judge told him ten.
(CT 147.) In hearing oral arguments on petitioner’s
motion for new trial, the judge conceded that petitioner
had not been given twenty peremptory challenges and that
it was the court’s error. (RT 577-78, 580-82.)

"The right to challenge a given number of jurors
without showing cause is one of the most important of the
rights secured to the accused. ... Any system for the
impaneling of a jury that prevents or embarrasses the full,
unrestricted exercise by the accused of that right, must be
condemned." Pointer v. United States, 151 U.S. 396, 408
(1894). "[P]eremptory challenge is a necessary part of
trial by jury." Swain v. Alabama, 380 U.S. 202, 219 (1965).
Although a criminal defendant does not have a
constitutional right to exercise peremptory challenges, it is
a constitutional violation to deny a criminal defendant
peremptory challenges when the law of the jurisdiction in
which the defendant is on trial grants him that right.
Hines v. Enomoto, 658 F.2d 667, 671-72 (9th Cir. 1981),
cert. denied 463 U.S. 1211 (1983). "The ‘right’ to
peremptory challenges is ‘denied or impaired’ only if the
defendant does not receive that which state law provides."
Ross v. Oklahoma, 487 U.S. 81, 89 (1988). It is reversible

26

error for a court to deny a defendant statutorily-granted
peremptory challenges. Hines, 658 F.2d at 672. Such a
denial is prejudicial error, without a showing of actual
prejudice. United States v. Allsup, 566 F.2d 68, 71 (9th
Cir. 1977) (citing Swain, 380 U.S. at 219; United States v.
Turner, 558 F.2d 535, 538 (9th Cir. 1977)).

Respondents, citing Ross, 487 U.S. at 88, assert
that the denial of peremptory challenges does not
necessarily preclude selection of an impartial jury. The
Ninth Circuit has held, however, that the outright denial
of a peremptory challenge, as opposed to the forced use
of a peremptory challenge, as occurred in Ross, requires
automatic reversal. United States v. Annigoni, 96 F.3d
1132, 1146-47 (9th Cir. 1996). The distinction to be drawn
is whether the petitioner was able to exercise all of the
peremptory challenges to which he is entitled by law. Jd.
In Ross, although the petitioner was forced to use a
peremptory challenge when the trial court erroneously
failed to excuse a juror for cause, the petitioner was able
to use the full number of peremptory challenges to which
he was entitled. Ross, 487 U.S. at 91. When the actual
number of peremptory challenges used does not equal the
number permitted by law, Ross does not apply. Annigont,
96 F.3d at 1146-47.

In the instant case, as in Hines, petitioner was
denied use of half of the peremptory challenges to which
he was entitled under the applicable state statute.
California Code of Civil Procedure § 231 grants twenty
peremptory challenges to a criminal defendant on trial for
a crime punishable by death or life imprisonment.*

4. California Code of Civil Procedure § 231 is the successor to
§ 1070 of the California Penal Code of 1872. Like the statute
currently in effect, the original Penal Code section provided that a
defendant was entitled to twenty peremptory challenges if the offense
charged was punishable with death or life imprisonment. An
amendment to the statute increased the number of challenges to

Se

27

Respondents contend, however, that this claim is
procedurally barred. Federal courts will not ordinarily
review a habeas petitioner’s claims if the state court
decision denying relief rests on a state law ground that is
both independent of federal law and adequate to support
the judgment. Coleman v. Thompson, 501 U.S. 722, 729
(1991); Harris v. Reed, 489 U.S. 255, 260-62 (1989). In
order to obtain a new trial because of improper denial of
peremptory challenges, California law requires that the
defendant make a timely objection. People v. Caro, 46
Cal. 3d 1035, 1046-47 (1988). It is clear that no timely
objection was made by petitioner’s trial counsel. (Resps.’
Ans. Ex. B (Appellant’s Opening Br.) at 33-38.)

In order to invoke the doctrine of procedural
default it is essential (inter alia) that the state court have
relied on the procedural rule asserted. If the state court
"fails to articulate that state procedural grounds form an
independent basis for the -decision so that the federal
court is left to conjecture concerning whether the matter
was disposed of on a separate and independent state
ground, the decision will be insufficient to bar federal
review." Karis v. Vasquez, 828 F. Supp. 1449, 1460 (E.D.
Cal. 1993); see also Siripongs v. Calderon, 35 F.3d 1308,
1318 (9th Cir. 1994), cert. denied, US.__, 1158S. Ct.
1175 (1995). An unexplained order by the state’s highest
court requires the federal court to look through to the last
reasoned state court opinion. Yist v. Nunnemaker, 501
U.S. 797, 803 (1991).

In the instant case, the last reasoned state court
opinion on petitioner’s claim was that of the state
appellate court. The California Court of Appeal clearly
asserted the state procedural rule. (Resps.’ Ans. Ex. A

twenty six for a period of time. See People v. Yates, 669 P.2d 1, 2
(Cal. 1983) (in bank). Under the statute in effect when petitioner
was tried in 1992, petitioner was entitled to twenty peremptory
challenges.

28

(Third Dist. Ct. App. Op. filed Apr. 29, 1994) at 30-31
(citations omitted).)

When a habeas petitioner has not complied with
an independent and adequate state rule barring an
otherwise valid claim, the claim is deemed procedurally
barred and the federal court may not ordinarily consider
the claim on its merits. Hines, 658 F.2d at 673. However,
a procedural default may be set aside when the petitioner
establishes both cause for failing to object at trial and
prejudice resulting from the alleged error. Wainwright v.
Sykes, 433 U.S. 72, 87 (1977).

The Ninth Circuit has held that counsel’s
ignorance of the law constitutes cause. Garnson v.
McCarthy, 653 F.2d 374, 377-78 (9th Cir. 1981). In
demonstrating counsel’s failure to object due to ignorance
of the law, the petitioner is not required to make the
showing which would establish deprivation of the right to
counsel under the Sixth Amendment. Garnson, 653 F.2d
at 377-78. Deliberate failure to object by counsel based
on a Strategic decision, on the other hand, does not satisfy
the cause requirement. /d. at 377. It is therefore
necessary for this court to consider the reason for
counsel’s failure to object to the ten-peremptory limit
imposed by the trial court. Hines, 658 F.2d at 673.

The record indicates that before the trial
petitioner’s counsel told the trial judge he believed he was
entitled to ten peremptory challenges. (RT 578.) The
judge agreed, and the prosecuting attorney was silent.
(Id.) Petitioner’s counsel did not object to the improper
denial of ten additional peremptory challenges until after
the trial judge informed him of the error, which occurred
subsequent to the trial. (RT 580.) At the hearing on
petitioner’s motion for a new trial, the trial court found
that counsel failed to object because he "was under, the
mistaken belief that there were only ten peremptory
challenges when in reality the law provides that there
should be 20." (RT 579.) Counsel himself declared that

29

he had believed that petitioner was entitled to only ten
peremptory challenges. (CT 148.) Based on the record,
this court finds that counsel’s failure to object at trial was
due to ignorance of the law. Accordingly, petitioner has
met the cause requirement under Sykes.

Petitioner must also show he was prejudiced by
the error. Sykes, 433 U.S. at 87. In order to show
prejudice, petitioner must establish that "his state trial
counsel would have challenged another juror or jurors had
he been aware of the remaining challenges." Hines, 658
F.2d at 674. In petitioner’s motion for a new trial,
petitioner’s counsel declared that he had written on his
jury chart during voir dire a note about excusing another
juror. (CT 148.) Counsel was unable to excuse that juror
because he used ten peremptory challenges to excuse
other jurors. (/d.) In addition, counsel declared that he
would have exercised additional peremptory challenges to
try to reach two other jurors who might have been more
advantageous to petitioner. (/d.) Petitioner has thus
shown prejudice by establishing that his state trial counsel
would have challenged another juror or jurors had counsel
been aware of the entitlement to additional challenges.

Petitioner has met the requirements for setting
aside the procedural default that resulted from counsel’s
failure to object in a timely manner. Once a petitioner
"satisfies the Wainwright v. Sykes ‘cause and prejudice’
standard, then the writ will issue." Zines, 658 F.2d at 675.
Under the circumstances of this case, this court finds that
the trial court’s denial of petitioner’s right to exercise
twenty peremptory challenges during jury selection and
the denial of petitioner’s motion for a new trial violated
petitioner’s right to due process and the right to an
impartial trial guaranteed by the Sixth Amendment.
Petitioner is entitled to relief on this ground.

eats —— 1

30

V. Ground Six: Ineffective Assistance of Counsel

To obtain relief on habeas corpus review for a
claim of ineffective assistance counsel, petitioner must
demonstrate that counsel "made errors that a reasonably
competent attorney acting as a diligent and conscientious
advocate would not have made" and that he was
prejudiced by counsel’s errors. Butcher v. Marquez, 758
F.2d 373,375-76 (9th Cir. 1985) (citing Strickland v.
Washington, 466 U.S. 668, 687 (1984)).

Petitioner must first show that, considering all
the circumstances, counsel’s performance fell below an
objective standard of reasonableness. Strickland, 466 US.
at 688. To this end, petitioner must identify the acts or
omissions that are alleged not to have been the result of
reasonable professional judgment. Jd. at 690. "The court
must then determine whether, in light of all the
circumstances, the identified acts or omissions were
outside the wide range of competent professional
assistance." Jd. "We strongly presume that counsel’s
conduct was within the wide range of reasonable
assistance, and that he exercised acceptable professional
judgment in all significant decisions made." Hughes v.
Borg, 898 F.2d 695, 702 (9th Cir. 1990).

If counsel’s acts or omissions were outside the
wide range of competent professional assistance, then
petitioner must affirmatively prove that prejudice resulted
from the acts or omissions. Strickland, 466 U.S. at 693. |
Prejudice is found where "there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different." Jd. at 694. "A
reasonable probability is a probability sufficient to
undermine confidence in the outcome." Jd. Prejudice
may not be found unless the result of the proceeding was
fundamentally unfair or unreliable because of counsel’s
ineffectiveness. Lockhart v. Fretwell, 506 U.S. 364, 368-69
(1993).

4
a

i

31

A. Failure to Object to Admission of Statements
Made to Officer Fiske

Petitioner first claims that his counsel was
ineffective because he did not object to the admission of
statements petitioner made to Officer Fiske. This court
has found that Officer Fiske’s issuance of Miranda
warnings and the subsequent waiver by petitioner were
consistent with Miranda. Consequently, there was no
error in counsel’s failure to object to the admission of the
statements made to Officer Fiske.

B. Failure to Seek Jury Instructions or Modifications

Petitioner claims that counsel’s failure to seek
jury instructions or modifications as alleged in his third
claim for relief amounted to ineffective assistance of
counsel. With respect to the voluntary manslaughter
instruction, this court has found the evidence of
provocation insufficient to cause a rational jury to return
a conviction for voluntary manslaughter. Therefore,
counsel’s failure to request such an instruction was not
unreasonable.

Petitioner also claims ineffective assistance of
counsel with respect to the failure to request an
instruction on voluntary intoxication. California Penal
Code § 22(b) provides that "[e]vidence of voluntary
intoxication is admissible solely on the issue of whether or
not the defendant actually formed a required specific
intent, premeditated, deliberated, or harbored malice
aforethought." In California, a criminal defendant is
entitled to an instruction on voluntary intoxication only
when he provides evidence of the amount of intoxicating
substances in his system at the time of the crime. People
v. Carr, 8 Cal. 3d 287, 295 (1972). Further, a criminal
defendant must show actual intoxication at the time of the
crime to an extent that would suggest that the defendant

32

lacked the specific intent or mental state required to
commit the crime. People v. Horton, 11 Cal. 4th 1068,
1119 (1995). Even though a drug abuse screen was
performed on the petitioner the day after the killing and
the test showed the presence of benzoylecgonine, THC
metabolites, amphetamine, and methamphetamine,
petitioner did not provide sufficient evidence to establish
the amount of these intoxicants in his system or the
intoxicating effect they had upon him. In addition, Officer
Fiske testified that he had known petitioner for at least
five years prior to the crime and that petitioner did not
appear intoxicated when he interviewed petitioner for an
hour on the night of the crime. (RT 350, 356-57.) In the
absence of sufficient evidence of intoxication to entitle
petitioner to a voluntary intoxication instruction,
petitioner’s counsel did not err in failing to request the
instruction.

Further, it does not appear that any failure to
pursue a defense based on voluntary intoxication
prejudiced petitioner. The voluntary intoxication defense
may be ruled out by strong evidence of specific intent.
Horton, 11 Cal. 4th at 1119. In Horton, "the circumstantial
evidence indicated that the crimes were carried out in
accordance with a predesigned plan... . [T]he
statements made by defendant following the murder and
robbery helped support a finding that defendant was fully
aware of his actions and intended their fatal
consequences." Jd. The facts of this case lead to the
same conclusion. The court has found that the evidence
was sufficient to allow a reasonable jury to find first
degree murder while lying in wait beyond a reasonable
doubt. Therefore, the court finds no reasonable
probability that a voluntary intoxication instruction would
have changed the result of the trial. Accordingly,
petitioner’s counsel was not ineffective with respect to a
voluntary intoxication instruction.

PAD ndigert hoe 98 Ge

33

C. Failure to Request Additional Peremptory
Challenges

The court has found that the trial court’s denial
of half of petitioner’s peremptory challenges violated due
process. Under ineffective assistance of counsel! analysis,
however, petitioner must make a higher showing of
prejudice. Petitioner must show that "there is a
reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would
have been different." Stnckland, 466 U.S. at 694.
Petitioner has not demonstrated a reasonable probability
that the result of his trial would have been any different
had counsel requested and exercised the ten additional
peremptory challenges. Accordingly, the court is unable
to find that petitioner received ineffective assistance of
counsel as a result of counsel’s failure to request
additional peremptory challenges.

D. Failure to Present a Mens Rea Defense

Petitioner claims that trial counsel was ineffective
because he chose not to present a mens rea defense based
on petitioner’s history of mental problems. Petitioner
points to four instances in which he was hospitalized due
to mental problems.

In challenging the effectiveness of counsel under
the Sixth Amendment, "[p]etitioner must overcome the
presumption that, under the circumstances, the challenged
action might be considered sound trial strategy."
Strickland, 466 U.S. at 689. In a sworn declaration,
petitioner’s trial counsel declares that he "did not feel it
appropriate or viable to present a psychiatric or Mens
Reas [sic] Defense in this case." (Resps.’ Ans., Ex. D at
1.) Further, petitioner’s trial counsel declared that he had
investigated petitioner’s history of mental problems and
dismissed them as an issue after learning that petitioner’s

34

licensed clinical social worker believed petitioner was
malingering in an attempt to reduce his jail sentence.
(Resps.” Ans., Ex. C at 2.) Inconsistencies between
petitioner’s alleged mental disorder and the stories he told
treating physicians led them to believe that he was
"confabulating.” (Pet’r’s Traverse, Ex. A.) In addition,
observations that petitioner showed little change when his
medication was increased led the treating physician to
suspect that petitioner was malingering. (/d.)

Given the inconclusiveness of petitioner’s mental
health history and the potentially damaging information
that he might have been malingering, this court finds that
it was not unreasonable for petitioner’s counsel to choose
not to raise the issue. Counsel’s decision not to raise the
issue under the circumstances of this case did not
comprise assistance of counsel] that fell below an objective
standard of reasonableness.

Further, counsel’s decision not to pursue the
mens rea defense did not prejudice petitioner. The
California legislature abolished diminished capacity as a
defense in 1981. Hforton, 11 Cal. 4th at 1118. As a result,
mental illness is "admissible solely on the issue of whether
or not the accused actually formed a required specific
intent, premeditated, deliberated, or harbored malice
aforethought, when a specific intent crime is charged."
People v. Saille, 54 Cal. 3d 1103, 1112 (1991). In the
instant case, there was sufficient evidence to support a
finding of specific intent. The court has found that a
rational jury could find first degree murder while lying in
wait beyond a reasonable doubt. Further, petitioner’s
incriminating remarks and his letter to his brother show
that he was "fully aware of his actions and intended their
fatal consequences." Horton, 11 Cal. 4th at 1119.
Accordingly, petitioner has not demonstrated a reasonable
probability that amens rea defense based on mental illness
would have changed the outcome of the trial.

35

With respect to the issues petitioner has raised,
this court finds that trial counsel exercised competent,
professional judgment in the significant decisions relating
to petitioner’s trial. Petitioner has not established a
reasonable probability that, but for the alleged errors,
petitioner would have prevailed at trial. Thus, the court
finds that petitioner was not denied effective assistance of
counsel.

VI. Ground Seven: Lack of Competence to Stand Trial

Petitioner claims that he was not competent to
stand trial due to "mental deficits.” As a result of these
deficits, he claims that he could not understand the
proceedings before and during trial and could not assist
counsel in his defense. Petitioner alleges that the court’s
failure sua sponte to conduct a competency hearing
violated his right to due process and his counsel’s failure
to request such a hearing violated his right to effective
assistance of counsel.

An individual may not be tried for a criminal
offense unless he is competent. Godinez v. Moran, 509
U.S. 389, 396 (1993); Pate v. Robinson, 383 U.S. 375, 378
(1966). A defendant is competent to stand trial if he "has
‘sufficient present ability to consult with his lawyer with a
reasonable degree of rational understanding’ and has ‘a
rational as well as factual understanding of the
proceedings against him.” Godinez, 509 U.S. at 396
(quoting Dusky v. United States, 362 U.S. 402, 402 (1960)
(per curiam)).

A. Trial Court’s Failure to Conduct a Competency
Hearing Sua Sponte

In a federal habeas corpus proceeding, a court
reviewing a record for evidence of a defendant’s
competence in a state court proceeding must determine

36

"whether evidence of incompetence was such that a
reasonable judge would be expected to experience a
genuine doubt respecting the defendant’s competence."
United States v. Lewis, 991 F.2d 524, 527 (9th Cir.), cert.
denied 510 U.S. 878 (1993) (quoting Chavez v. United
States, 656 F.2d 512, 516 (9th Cir. 1981)).

Due process requires the trial court to conduct
a competency hearing sua sponte if substantial evidence
creates a good faith doubt concerning the defendant’s
competency. Cacoperdo v. Demosthenes, 37 F.3d 504, 510
(9th Cir. 1994), cert. denied, US. _, 115 S. Ct. 1378
(1995). “There are no particular facts which invariably
signal incompetence, but important factors which merit a
judge’s attention include: irrational behavior, demeanor
before the trial court, and available medical evaluations."
United States v. Lewis, 991 F.2d at 527 (citing Drope v.
Missouri, 420 U.S. 162, 180 (1975)). Due process does not
require a competency hearing unless the facts present a
“substantial” or "bona fide" doubt as to the defendant's
competency. Hernandez v. Yisi, 930 F.2d 714, 716 (9th
Cir. 1991). Psychiatric testimony standing alone need not
create the requisite doubt. /d. at 718.

In the instant case, petitioner points to the
following facts in support of his argument that the trial
court should have doubted his competency to stand trial:
irrational and violent behavior in jail, irrational! behavior
in confessing his guilt to jail guards and to Ruspoli, and an
outburst during sentencing. With regard to the irrational
and violent behavior in jail, petitioner does not allege
specific facts of the incidents, nor does he provide any
explanation as to why violent behavior should cause the
trial court to be concerned about petitioner’s competence.
Further, although petitioner argues that it was irrational
to confess his crimes, confessions are not uncommon.
There are many inferences a court can draw from a
confession, including the inference that the confession
resulted from feelings of guilt or remorse. Petitioner has

37

shown no reason why the trial court should have viewed
his confessions differently from other confessions.

Finally, petitioner argues that his outburst during
sentencing should have caused the court concern. (Pet’r’s
Traverse at 21.) The outburst occurred as the prosecutor
was arguing the strength of the evidence at trial that the
murder was premeditated:
[PETITIONER]: I didn’t fuckin’ kill him,
though, that’s the fuckin’ problem that you
mother fuckin’ --
THE COURT: Sir, if you're not quiet I’m
going to have you removed from the courtroom.
[PETITIONER]: I don’t give a fuck. You're
taking my fuckin’ life, man.
THE COURT: You can be returned to the
courtroom when you can comport yourself.
[PETITIONER]: Fuckin’ can’t even
(inaudible).
THE COURT: Just take him to the back,
just take him to the back. Let the record
indicate that the Defendant has been disruptive,
he’s been noisy... .
(RT 586-87.) In light of the fact that the outburst
occurred at sentencing, where petitioner was to receive a
sentence of life imprisonment without parole, this court
finds that the outburst would not have given the trial court
a cause for reasonable concern as to petitioner’s
competence to stand trial. Moreover, petitioner’s
statement that the judge was “taking [his] . . . life”
supports an inference that petitioner had a rational as well
as factual understanding of the proceedings. against him.

Finally, petitioner’s counsel did not request a
competency hearing. The Ninth Circuit has recognized
that a criminal defendant’s counsel is :n the best position
to determine whether the defendant can comprehend the
proceedings. Hernandez, 930 F.2d at 718. "If [a criminal
defendant] had been unable to effectively assist counsel,

38

it logically follows that his attorney would have been the
first to know." United States v. Clark, 617 F.2d 180, 186
n.ll (9th Cir. 1980). It is significant evidence of
competence when a criminal defendant’s own attorney
considers him competent. /d.

For all of these reasons, this court finds that the
trial court did not have a basis for concern about
petitioner's competency and therefore did not violate
petitioner’s right to due process by failing to conduct a
competency hearing sua sponte.

B. Counsel’s Failure to Request _a Competency
Hearing

Petitioner claims that his mental problems made
him unable to understand the proceedings against him or
to assist his counsel in his defense. As a result, he asserts
that his trial counsel was ineffective for failing to request
a hearing to determine whether he was competent.

Petitioner's counsel declares that petitioner
appeared to be able to understand the proceedings.
(Resps.’ Ans., Ex. C at 3.) Petitioner discussed the course
of the trial with counsel and was able to disclose names of
potential defense witnesses. (/d.) Even though
petitioner’s counsel investigated and learned of petitioner's
medical history, counsel did not doubt petitioner’s
competency to stand trial. (/d.) Absent a showing by
petitioner that he was unable to understand the
proceedings and assist in his defense, the declaration of
petitioner’s counsel leads this court to find that
petitioner’s counsel did not violate petitioner’s right to
effective assistance of counsel by failing to request a
competency hearing.

39

VII. Ground Eight: Cumulative Effect of Errors

Petitioner contends that, even if none of the
alleged errors was prejudicial by itself, the cumulative
impact of any or all of the errors was prejudicial. Other
than this conclusory assertion, petitioner offers no specific
factual analysis.

"[T]he Constitution entitles a criminal defendant
to a fair trial, not a perfect one." Delaware v. Van Arsdall,
475 U.S. 673, 681 (1986). Indeed, "there can be no such
thing as an error-free, perfect trial." United States v.
Hasting, 461 U.S. 499, 508-09 (1983). However, "prejudice
may result from the cumulative impact of multiple
deficiencies." Cooper v. Fitzharris, 586 F.2d 1325, 1333
(9th Cir. 1978) (en banc), cert. denied, 440 U.S. 974
(1979). While individual errors looked at separately may
not rise to the level of constitutional error, the cumulative
effect of such errors may so prejudice the defendant's
right to a fair trial that reversal is warranted. United
States v. Berry, 627 F.2d 193,200-01 (9th Cir. 1980), cert.
denied, 449 U.S. 1113 (1981). See also United States v. -
Nadler, 698 F.2d 995, 1002 (9th Cir. 1983); Strickland v.
Washington, 466 U.S. 668, 696 (1984) (ultimate focus of
inquiry must be on the fundamental fairness of the
proceeding). In assessing alleged cumulative effect of
errors, the court should not consider actions held not to
be error. Berry, 627 F.2d at 201.

This court has held that the trial court’s denial of
half of petitioner’s peremptory challenges during voir dire
and denial of petitioner’s motion for a new trial on that
basis constituted reversible error. As to petitioner’s other
claims, the court has found no constitutional error.
Petitioner has failed to show that he suffered any
prejudice to his right to a fair trial as a result of the
cumulative effect of errors.

Upon careful consideration of the record, this
court finds that the trial court deprived petitioner of a fair

40)

and reliable trial by improperly denying him the full
number of peremptory challenges during voir dire to
which he was entitled

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_1980%3A2. Public record. Not legal advice.