Webster v. Chappell

Full title: LARRY J. WEBSTER, Plaintiff, v. KEVIN CHAPPELL, WARDEN, California State…

Court: UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Date published: Jun 4, 2014

No. CIV S-93-306 LKK DAD DP (E.D. Cal. Jun. 4, 2014)

Opinion

No. CIV S-93-306 LKK DAD DP

06-04-2014

LARRY J. WEBSTER, Plaintiff, v. KEVIN CHAPPELL, WARDEN, California State Prison at San Quentin, Respondent.

DALE A. DROZD

DEATH PENALTY CASE

FINDINGS AND RECOMMENDATIONS

BACKGROUND

Petitioner Larry J. Webster is a state prisoner under sentence of death. He seeks relief pursuant to 28 U.S.C. § 2254. In 2000, in response to respondent's motion for summary judgment, the court denied respondent's motion for summary judgment as to several claims within the petition, denied federal habeas relief as to numerous other claims by granting respondent's motion for summary judgment in part and granted habeas relief with respect to two of petitioner's claims on the grounds that the retrospective application of the construction of two special circumstances in petitioner's case by the state courts violated his right to due process. (Dkt. No. 232.) The granting of habeas relief with respect to those two claims was subsequently reversed by the Ninth Circuit Court of Appeals and the matter was remanded. Webster v. Woodford, 369 F.3d 1062 (9th Cir. 2004).

In 2006, the undersigned granted petitioner's motion for an evidentiary hearing with respect to the following three remaining claims of his petition: (1) ineffective assistance of counsel at the penalty phase; (2) denial of meaningful appellate review; and (3) insufficient narrowing of death-eligible offenses.¹ After lengthy development of the evidence and submission thereof to the court, the parties filed separate memoranda of points and authorities addressing those three claims. They also submitted final arguments addressing the following claims which had survived summary judgment but were not the subject of the ordered evidentiary hearing: (1) an Eighth Amendment challenge to the "lying in wait" special circumstance; (2) improper penalty phase instructions; (3) the trial court's failure to adequately review the sentence; (4) ineffective assistance of counsel for failure to present a mental health defense at the guilt phase; (5) ineffective assistance of counsel regarding petitioner's motion to suppress; (6) application of Proposition 8 violated the Ex Post Facto Clause; (7) the trial court erred in failing to record sidebar conferences; (8) the improper admission of testimony; (9) ineffective assistance of counsel during jury selection; and (10) cumulative error.

1 These are claims 22, 7, and 2 of the Second Amended Petition. (Dkt. No. 73.) That petition addresses many of petitioner's claims in overlapping fashion, making their identification by claim number somewhat difficult. The parties and court have agreed on the identity of all remaining, undecided non-evidentiary hearing claims. (See Dkt. Nos. 421, 423 and 426.) The claim numbers applicable to each claim are identified by respondent in an April 2009 status report filed with the court. (Dkt. No. 428 at 2-3.)

These findings and recommendations thus address all remaining evidentiary hearing and non-evidentiary hearing claims. After consideration of the pleadings, briefs, and arguments of counsel, after careful review of the state court record, and in light of the facts developed in the evidentiary hearing and by expansion of the record under Rule 7 of the Rules Governing § 2254 cases, the court makes the following findings and recommends that federal habeas relief be granted as to petitioner's claim that he received ineffective assistance of counsel in connection with the penalty phase of his trial.

STATEMENT OF FACTS²

2 This statement of facts is taken from the opinion of the California Supreme Court in People v. Webster, 54 Cal. 3d 411 (1991) and is presumed correct. Bean v. Calderon, 163 F.3d 1073, 1087 (9th Cir. 1998) (quoting 28 U.S.C. § 2254(d)(8) (1996)).

Petitioner Larry J. Webster and three other men, Joseph Madrigal, Carl Williams and Robert Coville, were jointly tried on charges arising from the death of William Burke.

I. Guilt Trial

A. Prosecution evidence

The principal prosecution witnesses were Bruce Smith and Michelle Cram. As the jury knew, Smith had already pled guilty to second degree murder in connection with the homicide, and Cram had been granted immunity in return for her testimony.
Smith and Cram provided the following account, differing only in minor details: In late August 1981, [petitioner], Joseph Madrigal, Carl Williams, Robert Coville, Smith, and the 17-year-old Cram were living at a riverbank encampment in Sacramento. [Petitioner] was the group leader. On the night of August 29, Smith, Madrigal, and Coville robbed a nearby convenience store. Quick response by the police forced the trio to hide for several hours before returning to camp.
The next day, August 30, [petitioner] and Williams made one of several trips to buy beer, which the camp residents were consuming at a steady pace. When the men returned in early afternoon, [petitioner] said they had met two "outlaws" ("street persons" or "survivors") at the Shell station near the convenience store. [Petitioner] reported there was still intense police activity in the area because of the robbery, and he suggested the group needed to leave town. [Petitioner] said he had arranged to use the "outlaws'" car for joint drug purchases or robberies that evening. The opportunity arose, he suggested, to lure one of the "outlaws" back to the camp, kill him, and steal the car.
Madrigal, Coville, and Williams expressed enthusiasm for the plan. According to Cram, [petitioner] said he personally would kill and dismember the victim; according to Smith, Coville said he "hadn't killed somebody in quite a while" and would "take care of it." When Cram expressed skepticism about [petitioner's] boasts, he insisted he was serious. [Petitioner] said this would be Cram's first criminal lesson and would help her become more independent from Williams, with whom she was living.
It was decided that because the "outlaws" knew Williams, he would walk back to the Shell station with [petitioner] to meet them. Madrigal would go along. Once the three returned to camp with the intended victim, either [petitioner] (according to Cram) or Coville (according to Smith) would kill him. [Petitioner] showed Smith where to dig a grave and told Cram to clean up the campsite and pack in preparation for the group's departure. [Petitioner],
Williams, and Madrigal then left for a 7:30 p.m. meeting with the "outlaws." [Petitioner] had drunk beer all day and may have taken amphetamines. As usual, [petitioner] was wearing glasses; Williams wore a cowboy hat.
While the three men were gone, Smith and Cram worked at their assignments; Coville sat and drank beer. After half an hour's absence, [petitioner] called out from the top of a levee that his group had returned. Four men walked single file down the trail to the camp. Williams was in the lead, followed in order by Madrigal, victim Burke, and [petitioner]. When the four were about halfway down the trail, [petitioner] suddenly grabbed Burke and pulled a knife. According to Smith, [petitioner] moved around to the front of Burke and stabbed him; Cram saw [petitioner] reach from behind to stab Burke in the chest. Burke protested, and a struggle ensued. Madrigal turned back to assist [petitioner]. Burke began to make gurgling sounds.
Cram became hysterical, so [petitioner] and Williams told Smith to take her to "Fag Beach" and wait.[³] Ten minutes later, [petitioner], Madrigal, Williams, and Coville arrived at the "Fag Beach" parking lot with the group's belongings. [Petitioner] gave Coville a car key, which Coville used to unlock the trunk of a car parked in the lot. The group loaded their possessions in the car, proceeded to Interstate 5, and drove all night toward Southern California. [Petitioner] indicated that they should eventually turn east, toward Missouri.
As they rode, Madrigal explained to Smith that "the man had died hard." Madrigal said Burke had managed to grab [petitioner's] knife and inflict a thigh wound on [petitioner] before Madrigal joined in to help [petitioner] "finish the job and get his knife back." Madrigal indicated that he himself had been slashed across the stomach by Burke during the struggle. Smith said that, at one point, he saw [petitioner] and Madrigal's knives in the car.
About 3:30 p.m. the next day, as [petitioner] was driving, an officer of the California Highway Patrol (CHP) stopped the group's car for speeding on Interstate 15 near Barstow. Investigation stemming from the traffic stop eventually led to the arrest of all six passengers, and to statements by Smith and Cram concerning the Burke homicide. (See discussion, post.) On September 8, Detective Burchett of the Sacramento Police Department took an in-custody statement from Cram which essentially conformed to her trial testimony.
Guided by Smith's directions, the police found Burke's body in its shallow riverbank grave on the morning of September 3. Burke's throat had been cut, and there were 24 other stab wounds, 8 in the rear of the body. The wounds could have been inflicted by more than one knife and more than one person. Burke's pants pocket was turned out, but his wallet had not been taken.
The car in which the group was arrested was registered to Ronnie Glover. Glover testified that on the evening of August 30, he loaned the car to his cousin Burke, with whom he was traveling. Burke then left the Shell station in the company of three men meeting the descriptions of [petitioner] (glasses), Madrigal, and Williams (cowboy hat). Glover never saw Burke or the car again.
When examined at the time of booking, Madrigal and [petitioner] both had fresh injuries. [Petitioner's] wound was on the knee. A bloodstained knife was found in the car taken from Glover and Burke.

3 "'Fag Beach' is the name by which Smith referred to the riverbank area at the foot of North 10th Street, directly below the parking lot where Burke's auto had been left. The record discloses no official name for the beach." Webster, 54 Cal. 3d at 425 n.2.

B. Defense evidence

[Petitioner] testified in his own behalf. He denied any plan to kill the victim and steal his car. The camp residents had engaged in a drunken discussion about killing people, but [petitioner] insisted he merely taunted the others to show they were not as "tough" as they maintained. [Petitioner] did tell the "sniveling" Cram that "[t]his will be your first day of school," but the remark was intended only to "shut her up." He did not order anyone to dig a grave or break camp before he went to meet Glover and Burke.
Later, according to [petitioner], Burke handed him the car keys when they arrived at the "Fag Beach" parking lot. [Petitioner] was "fairly loaded" but not staggering drunk. As the four men walked from the car toward the camp, he and Burke were arguing over how to split the proceeds of drug sales and robberies planned for later in the evening. Burke wanted a larger share because he had furnished the car. Burke suddenly pulled a knife and slashed [petitioner] on the leg. [Petitioner] managed to get control of Burke's weapon and defended himself. Burke kept "charging" at [petitioner] and Madrigal, forcing them to continue stabbing him. Burke could have left had he wished to do so.
Only after Burke's death, [petitioner] said, did the group decide to take the car and flee. Attempts to dig a makeshift grave were unsuccessful, so they dragged Burke's body under a bush. They also threw knives belonging to [petitioner], Madrigal, Burke, and Smith into the river. [Petitioner] denied going through Burke's pockets. He could not name the owner of the knife found in the car but said it was not Madrigal's.
William Gaida, a Sacramento detective, testified about a statement taken from Cram on September 2, which differed in minor respects from Cram's trial testimony. Larry Moser testified that several years earlier, he was seriously injured in a barroom fight initiated by Burke.
Coville testified in his own defense. He denied participating in or overhearing a plan to kill Burke. Coville said he was drunk when [petitioner], Madrigal, and Williams returned to camp with Burke. Coville insisted he did not see the killing of Burke, but [petitioner] later told him "this guy [had] jumped on [petitioner] and stuck him with a knife" and [petitioner] thought the "guy" was
dead after a struggle. Coville recited in some detail how the group reached Burke's car and left town.
A psychiatrist, Dr. Globus, testified that Coville was an alcoholic with brain damage and a history of "amnestic episodes." Coville told Dr. Globus he remembered little of the incident besides drinking and "partying." Dr. Globus believed Coville and concluded he could not have formed the mental states necessary for malice, premeditation, lying in wait, or intent to kill.
Neither Williams nor Madrigal testified. Madrigal's long history of behavioral and psychiatric problems and drug and alcohol abuse was detailed. Dr. Mungas, a psychologist, testified that Madrigal had hazy memories of a fight but remembered no details. Dr. Mertz, a psychiatrist, testified that Williams told her he had been consuming beer and amphetamines continuously by the evening of August 30; he remembered going to the Shell station and returning with Burke; he heard a scuffle behind him and took Cram away. Dr. Mertz concluded that because of drug and alcohol intoxication, Williams had diminished capacity to conspire, harbor malice, premeditate, or intend to kill.[⁴]

4 "The jury acquitted Coville and Williams of first degree murder, but found them guilty of robbery, second degree murder, grand theft of an auto and conspiracy to commit robbery and first degree murder. Madrigal, like [petitioner], was found guilty of conspiracy, robbery, grand theft of an automobile and first degree murder with personal use of a dangerous and deadly weapon. As to Madrigal, a lying-in-wait special circumstance was found not true, but a robbery-murder special circumstance was found true. [Petitioner] and Madrigal proceeded to a separate penalty trial." Webster, 54 Cal. 3d at 427 n.3.

II. Penalty Trial

A. Prosecution evidence

The People presented evidence that in the early morning of August 31, 1981, the day after the Burke homicide, [petitioner], Madrigal, Smith, and Williams robbed a convenience store in Pacoima. The prosecution presented a videotape of the robbery, along with the testimony of Smith and the store clerk, Eli Yitshaky. The evidence indicated that [petitioner] was the ringleader, that he and Madrigal brandished knives, and that Yitshaky was knocked unconscious after complying with the robbers' order to lie down on the floor. The robbers took food, money from the cash register, and Yitshaky's personal property. [Petitioner], who followed Smith from the store, told Smith he had "punched [Yitshaky] out" and had taken his wallet and watch.
The prosecution introduced evidence that on October 31, 1981, [petitioner] and Madrigal were convicted of armed robbery in the Pacoima case. Two Washington State felony convictions against [petitioner] were also presented: a 1977 conviction for second degree assault, and a 1974 conviction for second degree burglary.

B. Defense evidence

Several members of [petitioner's] family testified in his behalf. According to his two sisters, the family was poor. Their father was unemployed and a cruel alcoholic who often beat the children and their mother. Still, [petitioner] was cooperative and hardworking until he returned from his two combat tours in Vietnam. Thereafter, his personality was completely changed; he was remote and bitter. He complained that television news about the war was inaccurate. While drinking in a bar with his sister Linda Moss, [petitioner] cried and said he had run over a Vietnamese child while driving his Army supply truck during maneuvers. [Petitioner's] mother confirmed her son's personality change after Vietnam and pleaded for his life.
[Petitioner] produced documentary evidence that he had received the Bronze Star for combat bravery in Vietnam. The citation for this medal indicated that [petitioner], disregarding his own safety, had leveled "devastating" machine-gun fire on an advancing enemy force to protect tanks that were taking on ammunition from his supply truck.
Finally, [petitioner] presented evidence about his efforts to learn a trade in the Washington State Penitentiary. A prison vocational counselor said [petitioner] approached him for assistance in entering auto-body and welding courses. According to his instructors, [petitioner's] performance in the auto-body class was average; his performance in a welding class was excellent.
Madrigal, who was jointly tried on the issue of penalty, also presented character and background evidence from relatives. Dr. Mertz expanded upon the guilt phase evidence of Madrigal's mental state. Dr. Mertz said Madrigal still had little recall of the Burke homicide and had expressed remorse. She reiterated that Madrigal was a chronic alcoholic and amphetamine abuser and diagnosed an "atypical pervasive developmental disorder" with antisocial features. These conditions, said Dr. Mertz, impaired Madrigal's capacity to appreciate the criminality of his conduct and to conform his behavior to law. The jury sentenced Madrigal to life imprisonment without parole.

PROCEDURAL BACKGROUND

I. State Proceedings

In 1983, petitioner was convicted, following his jury trial in the Sacramento County Superior Court, of first degree murder (California Penal Code §§ 187, 189 ⁵) for the death of William Burke; robbery (id. § 211); conspiracy to commit first degree murder and robbery (id. § 182(1)); and grand theft of an automobile (id. § 487(3)). The jury also found true an enhancement allegation that petitioner had personally used a deadly and dangerous weapon. (Id § 12022(b).) As special circumstances making petitioner subject to the death penalty under California's 1978 death penalty statute, the jury found petitioner had intentionally committed the murder while lying in wait (id. § 190.2(a)(15)) and while engaged in the commission or attempted commission of a robbery (id. § 190.2(a)(17)(i)). Following the penalty phase of the trial, the same jury determined that petitioner's penalty should be death.

5 Petitioner's crime occurred in 1981. All citations herein to the California Penal Code refer to the version of the statute in effect at that time.

On direct appeal, the California Supreme Court affirmed the judgment of conviction in its entirety. Webster, 54 Cal. 3d at 423. In the same opinion, that court denied petitioner's first state petition for writ of habeas corpus. Id. at 456-60.

After filing an initial petition for writ of habeas corpus in this court, petitioner returned to state court to exhaust additional claims in state court. In this regard, petitioner filed a second petition for writ of habeas corpus in the California Supreme Court on April 23, 1996. That state habeas petition was summarily denied on April 26, 1996. (See Dkt. No. 73 at 2.)

II. Federal Proceedings

Petitioner filed a petition for writ of habeas corpus in this court on November 23, 1994, followed by a first amended petition on January 6, 1995. (Dkt. Nos. 36 & 42.) After his exhaustion petition was ruled upon by the state courts, petitioner filed a second amended petition for writ of habeas corpus in this court on September 19, 1996. (Dkt. No. 73 (hereafter "Pet.").) Respondent filed a preliminary answer to the petition on November 26, 1996. (Dkt. No. 76.) On the same day, respondent filed a motion for summary judgment with respect to all of petitioner's claims. (Dkt. No. 77.) On February 4, 1998, petitioner filed his opposition to summary judgment and a cross-motion for partial summary judgment. (Dkt. No. 141.)

On February 18, 1999, the undersigned recommended granting in part and denying in part respondent's motion for summary judgment and denying petitioner's cross-motion for partial summary judgment.⁶ (See Dkt. No. 176 at 141-43.) The assigned District Judge adopted those findings and recommendations in all but two respects, granting summary judgment for petitioner on claims that retrospective application of the two special circumstances violated petitioner's due process rights. (Dkt. No. 201.) The district court entered partial judgment in petitioner's favor. (Dkt. No. 232.) On appeal, the Court of Appeals for the Ninth Circuit reversed the granting of relief with respect to those two claims and the case was remanded to this court. Webster v. Woodford, 369 F.3d 1062 (9th Cir. 2004) (finding that the state supreme court's construction of the two special circumstances was not so unforeseen or unexpected that it resulted in a deprivation of petitioner's due process rights); (Dkt. No. 244).

6 The hearing of the parties' summary judgment motions was significantly delayed in large part due to the withdrawal of petitioner's original counsel and the appointment of new counsel on his behalf. (See Dkt. No. 176 at 2-10 (detailing the extensive procedural history leading up to the June 9, 1998 hearing on the motions).)

On April 21, 2006, petitioner filed a motion for an evidentiary hearing. (Dkt. No. 272.) Petitioner requested, and the court granted, an evidentiary hearing on three claims: (1) trial counsel provided ineffective assistance by failing to investigate and present mitigation evidence in the penalty phase of petitioner's trial; (2) petitioner was denied meaningful appellate review by the California courts in violation of the Eighth Amendment; and (3) California's statutory scheme fails to adequately narrow application of the death penalty. (Dkt. No. 276.) In its entirety, the evidence with respect to these three issues was taken by way of declaration and deposition and has been submitted to the court as exhibits. The parties subsequently briefed each of these issues, filing an index of evidence with respect to each issue. (Dkt. Nos. 372, 373 (Evid. Index), 393, 396, 400 & 468 (briefing re: ineffective of assistance claim); 431, 432 (Evid. Index), 438 & 440 (briefing re: appellate process claim); and 472 (Evid. Index), 473, 476 & 479 (briefing re: narrowing claim).)

On October 16, 2009, respondent filed an answer and memorandum of points and authorities. (Dkt. No. 427.) On November 30, 2009 petitioner filed a traverse and separate points and authorities addressing certain claims. (Dkt. Nos. 433 & 434.) These memoranda were directed primarily at those claims that survived summary judgment but were not the subject of the grant of the evidentiary hearing. On these non-evidentiary claims, the parties also filed supplemental memoranda of points and authorities. (Dkt. Nos. 439 & 441.)

With the final remaining claims now fully briefed, for the reasons set forth below, the undersigned recommends granting petitioner's claim of ineffective assistance of counsel at the penalty phase and denying all other remaining claims.

APPLICABLE LEGAL STANDARDS

The petition for writ of habeas corpus in this case was filed before the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") and thus is not subject to the provisions of that Act. Lindh v. Murphy, 521 U.S. 320, 326 (1997); McMurtrey v. Ryan, 539 F.3d 1112, 1118 n.1 (9th Cir. 2008); Webster, 369 F.3d at 1066.

Under those pre-AEDPA standards, 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. Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1994); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)); 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) ("We have stated many times that 'federal habeas corpus relief does not lie for errors of state law.'") (citation omitted); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000); Lincoln v. Sunn, 807 F.2d 805, 814 (9th Cir. 1987); Givens v. Housewright, 786 F.2d 1378, 1381 (9th Cir. 1986).

However, "a claim of error based upon a right not specifically guaranteed by the Constitution may nonetheless form a ground for federal habeas relief where its impact so infects the entire trial that the resulting conviction violates the defendant's right to due process." Hines v. Enomoto, 658 F.2d 667, 672 (9th Cir. 1981) (citing Quigg v. Crist, 616 F.2d 1107 (9th Cir. 1980)), abrogated on other grounds by Ross v. Oklahoma, 487 U.S. 81 (1988). See also Lisenba v. California, 314 U.S. 219, 236 (1941); Henry v. Kernan, 197 F.3d 1021, 1031 (9th Cir. 1999). In order to raise such a claim in a federal habeas petition, "the error alleged must have resulted in a complete miscarriage of justice." Hill v. United States, 368 U.S. 424, 428 (1962). See also Henry, 197 F.3d at 1031; Crisafi v. Oliver, 396 F.2d 293, 294-95 (9th Cir. 1968); Chavez v. Dickson, 280 F.2d 727, 736 (9th Cir. 1960). Habeas corpus cannot be utilized to try state issues de novo. Milton v. Wainwright, 407 U.S. 371, 377 (1972); see also Brecht v. Abrahamson, 507 U.S. 619, 633 (1993) ("Federal courts are not forums in which to relitigate state trials.")

Although less deference to state court factual findings is required under the pre-AEDPA law, state court factual findings are entitled to a presumption of correctness unless one of eight enumerated exceptions apply. See 28 U.S.C. § 2254(d) (1994); McMurtrey, 539 F.3d at 1118; Silva v. Woodford, 279 F.3d 825, 835 (9th Cir. 2002); Bean v. Calderon, 163 F.3d 1073, 1087 (9th Cir. 1998) (on habeas review, the factual findings of the state court are presumed to be correct unless they are "not fairly supported by the record") (quoting 28 U.S.C. § 2254(d)(8) (1996)). The state courts' application of law to historical facts is reviewed by the federal habeas court de novo as are mixed questions of law and fact. Thompson v. Keohane, 516 U.S. 99, 110 (1995) (holding that under pre-AEDPA standards federal courts are not required to defer to state court determinations of mixed questions of law and fact); Hoyle v. Ada County, 501 F.3d 1053, 1059 (9th Cir. 2007); Thompson v. Borg, 74 F.3d 1571, 1573 (9th Cir. 1996); Powell v. Gomez, 33 F.3d 39, 41 (9th Cir. 1994); Ben-Sholom v. Ayers, 566 F. Supp. 2d 1053, 1060 (E.D. Cal. 2008).

The federal habeas court also "need not defer to state court rulings on questions of law ' since the federal court is not formally reviewing a judgment, but is determining whether the prisoner is "in custody in violation of the Constitution or laws or treaties of the United States."'" McMurtrey, 539 F.3d at 1118 (quoting Lambrix v. Singletary, 520 U.S. 518, 523 (1997)). The federal habeas court is to "simply resolve the legal issue on the merits, under the ordinary rules." Id. (quoting Summerlin v. Schriro, 427 F.3d 623, 628 (9th Cir. 2005) (en banc).

The habeas petitioner bears the burden of "proving that [his] detention violates the fundamental liberties of the person, safeguarded against state action by the Federal Constitution." Townsend v. Sain, 372 U.S. 293, 312 (1963), overruled on other grounds by Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992). Accord Silva, 279 F.3d at 835 ("It is the petitioner's burden to prove his custody is in violation of the Constitution, laws or treaties of the United States.") (quoting Snook v. Wood, 89 F.3d 605, 609 (9th Cir. 1996)). To prevail, the petitioner must "convince the district court 'by a preponderance of evidence' of the facts underlying the alleged constitutional error." McKenzie v. McCormick, 27 F.3d 1415, 1418 (9th Cir. 1994) (quoting Johnson v. Zerbst, 304 U.S. 458, 469 (1938)), abrogated on other grounds by O'Dell v. Netherland, 521 U.S. 151 (1997). See also Davis v. Woodford, 384 F.3d 628, 638 (9th Cir. 2004); Silva, 279 F.3d at 835.

The granting of federal habeas relief is appropriate "only if the alleged errors 'had substantial and injurious effect or influence in determining the jury's verdict.'" Hovey v. Ayers, 458 F.3d 892, 900 (9th Cir. 2006) (quoting Brecht, 507 U.S. at 637).

With these standards of review in mind, the undersigned will address each of petitioner's remaining claims for federal habeas relief. The court begins with those claims that were the subject of the evidentiary hearing granted by this court.

ANALYSIS

I. Evidentiary Hearing Claims

A. Ineffective Assistance of Counsel at the Penalty Phase

In his Claim 22, petitioner contends his death sentence is invalid under the Sixth Amendment because he received ineffective assistance of counsel during the penalty phase of his trial. As noted above, after reviewing the parties' briefing and hearing their arguments, the court granted an evidentiary hearing on this issue. By agreement of the parties, and with the approval of the court, the evidence on this claim was submitted via declarations and video-taped depositions rather than by in-court testimony. In this regard, petitioner has presented to the court:

(1) declarations comprising the testimony of 44 witnesses;
(2) depositions of 20 witnesses (both transcripts and videos);
(3) recordings and transcripts of interviews with 10 witnesses;
(4) the stipulated further testimony of 1 witness;
(5) exhibits, numbered from 1 to 102, submitted pursuant to Habeas Rule 7, comprised of photographs, military records, maps, additional declarations, school records, court records, medical records and other documents; and
(6) separate exhibits accompanying the 20 depositions.

(Index to Evidence Submitted Regarding Petitioner's Claim of Ineffective Assistance of Counsel (hereinafter "IAC Evid. Index") (Dkt. No. 373).)⁷

7 Petitioner has requested that the court disregard one sealed document referenced by respondent in his brief in opposition to the ineffective assistance of counsel at penalty phase claim (Dkt. No. 395 - sealed) as well as respondent's argument based upon that document. (Dkt. No. 400 - sealed.) The undersigned will deny petitioner's request because even considering the contested document and arguments, as well as petitioner's argument regarding its lack of persuasive weight, the undersigned concludes that petitioner still prevails on the claim in question.

For the reasons explained below, this evidence compels the conclusion that petitioner's trial counsel's failure to investigate and present a mitigation case to the sentencing jury deprived petitioner of effective assistance of counsel with respect to the penalty phase of his trial.

1. Factual Background

Because petitioner was indigent, attorney Vincent O'Brien was appointed to represent him in the Sacramento County Municipal Court on November 20, 1981. (CT 1841.)⁸ Attorney O'Brien served as petitioner's counsel during his preliminary hearing in January of 1982 and was reappointed to represent petitioner in the Sacramento County Superior Court on March 2, 1982. (CT 13, 1036.) O'Brien did not request the appointment of a second attorney, so-called "Keenan counsel," on petitioner's behalf. It was not until June 30, 1982, more than seven months after his initial appointment, that attorney O'Brien finally hired Michael McCarthy as the investigator to work on petitioner's case. (McCarthy Decl., Decl. 37 (Dkt. No. 288-1 at consec. p. 152) at ¶ 2.) ⁹ McCarthy was the only investigator to work on petitioner's case and had limited experience, having worked as an investigator for less than three years at the time he signed on as the sole investigator working on petitioner's case. (Id. ¶ 5; McCarthy Depo., lodged herein Mar. 6, 2007 (see Dkt. No. 311), at 18, 24-25.) More importantly, McCarthy had never conducted a mitigation investigation in a capital case. (Id. ¶ 5; McCarthy Depo., lodged herein Mar. 6, 2007 (see Dkt. No. 311), at 18.) ¹⁰ Investigator McCarthy met with petitioner alone only once or twice. (McCarthy Depo., lodged herein Mar. 6, 2007 (see Dkt. No. 311), at 39-40.) McCarthy testified that petitioner was cooperative during these meetings, but appeared withdrawn and depressed. (Id at 48-51, 52-53.)

8 The state court record, lodged with the court, will be cited as follows: "CT" refers to the Clerk's Transcript on appeal; "RT" refers to the reporter's transcript on appeal; loose transcripts outside of the consecutively paginated RT are designated herein with a date, "RT (date)."

9 Because many declarations are contained in some of the docket entries, for ease of reference the court refers both to the consecutive page of that docket entry for example, here, Mr. McCarthy's statement appears at page 152 of the 159 pages of docket entry 288-1 as well as to the relevant paragraph in the declaration.

10 All deposition transcripts were lodged, and are maintained by this court, in paper.

McCarthy's "investigator diary" and billing records are the best and most complete chronology of what occurred during the defense's investigation of petitioner's case. (Id. at 11-19.) These records, consisting of eight documents submitted as Exhibits B through I to McCarthy's deposition, cover the period of time from late July 1982 through the return of the jury's penalty phase verdict on April 14, 1983. McCarthy's records reflect that no investigation related to the penalty phase took place prior to the beginning of petitioner's trial and that no penalty phase investigation at all was conducted until well after the guilt-phase evidence had been submitted to petitioner's jury.

During the pretrial proceedings and guilt-phase portion of petitioner's trial, attorney O'Brien had five or six conversations with attorney William Owen about petitioner's case. (Owen Depo., lodged herein Nov. 9, 2007 (see Dkt. No. 363), at 25-26.) In his declaration, attorney Owen described his relationship with attorney O'Brien as follows:

[O'Brien] would provide some information about the case or an issue in the case and I would give him my impressions and recommend certain actions. I advised him that he must assume the case would go to a penalty trial, and urged him to conduct a thorough penalty-phase investigation.

(Owen 2007 Decl., Decl. 41 (Dkt. No. 316-1) ¶ 6.) Owen would later learn that O'Brien had not followed this recommendation. (RT (Mar. 7, 1983) at 4.)

Just before his trial began, petitioner made a motion to have O'Brien relieved as his counsel of record, complaining about his appointed counsel's lack of follow-through.¹¹ The request was denied. (RT at 573-574.) On October 21, 1982, jury selection began. (CT at 1290.) The evidentiary portion of the guilt of the trial began on November 29, 1982. (CT at 1309.) The prosecution rested its case on December 14, 1982. (CT at 1331.) The presentation of petitioner's defense began on December 20, 1982, and relied upon the testimony of petitioner in support of a self-defense theory. (RT at 3668, 3682, 3701-3707, 3855-3856.) In this regard, petitioner admitted that he and Madrigal had stabbed the victim Burke. (RT at 3830-3833.) During his trial testimony, evidence regarding petitioner's abuse of alcohol and drugs on the day of the homicide was presented. (RT at 3684-3686, 3764-3765, 3780-3785.)

11 It would appear in retrospect that petitioner's concerns were well-founded.

The trial recessed for the holidays from December 23, 1982 to January 4, 1983. (CT at 1340-1341.) As the other defendants presented their cases, investigator McCarthy, for the first time, on January 18, 1983, attempted to obtain portions of petitioner's military file from the government. (Jan. 25, 1983 Trial Investigator Record, Ex. 61 (Dkt. No. 291-1 at consec. pp. 128-129) at 3-4; McCarthy Depo., lodged herein Mar. 6, 2007 (see Dkt. No. 311), at 33-38.) As explained in more detail below, the defense did not receive those military records until well after the conclusion of the guilt phase.

On January 31, 1983, the jury was scheduled to begin hearing the parties' final guilt-phase arguments, but one of the co-defendants' counsel was ill, and the trial court continued the case for a week. (RT at 4712-4716; CT at 1352.) On February 1, 1983, McCarthy had a meeting with O'Brien "as to the information which will be needed if this trial goes to the penalty phase." (Feb. 21, 1983 Trial Investigator Record, Ex. 62 (Dkt. No. 291-1 at consec. p. 132) at 1.) Previous to that meeting, other than the request for military records made just two weeks earlier, no penalty-phase investigation had been conducted on behalf of petitioner.¹² In February of 1983, McCarthy began to collect documents and call individuals relating to petitioner's prior felony convictions and incarceration in the State of Washington. (Id. at 1-5.) However, at that time no one attempted to contact petitioner's family or any mitigation witnesses relating to either petitioner's childhood or military service.

12 As explained in detail later in the undersigned's discussion of petitioner's claim of ineffective assistance of counsel at the guilt phase, attorney O'Brien did have petitioner examined by two mental health professionals prior to the commencement of petitioner's guilt phase trial. However, he did so for the purpose of determining whether to pursue a guilt-phase mental health defense, such as diminished capacity, based on a possible post-traumatic stress disorder brought about as a result of petitioner's experiences in Vietnam. (See O'Brien Decl., Ex. 1 to Inf. Resp. to First State Petition.) However, at that time, attorney O'Brien had not sought petitioner's military records or other background information to support the mental health professionals' work. Nonetheless, those professionals rendered opinions that petitioner was not suffering from PTSD or any other mental defect that might support a guilt phase defense. It is evident that O'Brien did not further explore petitioner's mental health or substance abuse for purposes of developing mitigating evidence for the penalty phase of the trial.

The jurors returned their guilt-phase verdicts on Wednesday, February 23, 1983. (CT at 1597.) Petitioner was convicted of first degree murder, robbery, conspiracy, and automobile theft. (RT at 5229-5243.) The two alleged special circumstances allegations were found by the jury to be true. (RT at 5236-5238.) After the guilt phase verdicts were returned, the trial court continued the matter, ordering the penalty phase trial to begin on March 8, 1983. (RT at 5280.)

The day after the guilt phase verdicts were rendered, McCarthy met with O'Brien regarding the penalty phase. (Mar. 1, 1983 Trial Investigator Record, Ex. 63 (Dkt. No. 291-1 at consec. p. 139) at 1.) On February 25, 1983, a subpoena was issued by the defense for petitioner's military records and mailed to the repository in Missouri; subpoenas were also issued for three witnesses who knew petitioner during his incarceration in the State of Washington during the late 1970's. (Id.; Ex. J to McCarthy Depo., lodged herein Mar. 6, 2007 (see Dkt. No. 311).) At his deposition, attorney Owen described what occurred next:

I got a call one morning from, I believe, Vince O'Brien's wife, asking me to speak to Vince. That he had what they thought was a heart attack, and that he couldn't continue in the case, and they wanted me to do the penalty phase.

(Owen Depo., lodged herein Nov. 9, 2007 (see Dkt. No. 363), at 25.) Owen believed that O'Brien's health was in serious jeopardy and that "if Mr. O'Brien were to continue as Mr. Webster's counsel it might have serious negative consequences for his health." (Owen 2007 Decl., Decl. 41 (Dkt. No. 316-1) at ¶ 4.) According to Owen, that "was the only reason I agreed to take the appointment." (Id.)

On March 1, 1983, O'Brien filed a motion with the trial court asking to be relieved as counsel of record for petitioner. (CT at 1600-1602.) O'Brien filed a declaration in support of his request to be relieved, asserting that his cardiologist had recommended that he "not try the penalty phase of this case." (CT at 1602.) He also stated that Owen was available to serve as petitioner's appointed counsel for the penalty phase and that Owen was familiar with the case. (CT at 1602.) At a hearing held that same day, the trial court granted the motion, relieved O'Brien and appointed Owen as petitioner's counsel of record. (RT at 5282-5288.)

On March 3, 1983, investigator McCarthy and attorney Owen, who had just been appointed two days earlier, met for the first time regarding the case. Owen had by that time had an opportunity to preliminarily review petitioner's case file. He then discovered that virtually nothing had been done with regard to defense preapration for the penalty phase of the trial. Attorney Owen explained the predicament he found himself in:

My consent to accept the appointment as Mr. Webster's attorney, after Mr. O'Brien moved to withdraw before the penalty phase, was based on his assurances that he had been taking reasonable steps in preparation for the penalty phase . . . . When I received the files and reviewed them after accepting the appointment, I discovered that virtually nothing had been done in preparation for the penalty phase. Mr. Webster's family had not been contacted. His military file had not been obtained. The preparation was inadequate. The case was simply not ready to be tried.

(Owen 2007 Decl., Decl. 41 (Dkt. No. 316-1) at ¶ 7 (footnote omitted).) Investigator McCarthy had a similar recollection:

I recall very clearly that first meeting with Mr. Owen on March 3, 1983. Mr. Owen was very concerned about the condition of the case. He wanted to know why certain things were not done. Since I had never conducted a penalty phase investigation before I did not know how to respond . . . . Mr. Owen told me to contact Larry Webster's family as soon as possible. Mr. O'Brien had never asked me to contact Mr. Webster's family. Mr. Owen also told me to follow up on the documents we had not received but subpoenaed via certified letters on February 25th. We still had not received Mr. Webster's military records.

(McCarthy Decl., Decl. 37 (Dkt. No. 288-1 at consec. p. 153) at ¶ 16.) At a trial readiness appearance for the penalty phase held on March 7, 1983, the day before that phase of petitioner's trial was scheduled to begin, Owen asked to meet with the trial judge ex parte to request a continuance. (RT at 5303.) Attorney Owen advised the trial judge at that time that virtually nothing had been done to prepare for the presentation of mitigating evidence on petitioner's behalf at the penalty phase, that only three witnesses had been subpoenaed and that all three were prison employees from the State of Washington, where petitioner had been incarcerated. (RT (Mar. 7, 1983) at 3.) "And that's all," Owen said. (Id.) "That's all that's been prepared for the penalty phase." (Id.) He also informed the trial court that petitioner's military records had not been gathered and that attorney O'Brien had misled him about the extent and significance of petitioner's military service. (Id. at 4-5.) O'Brien had told Owen that he was aware of no service medals. Upon discovering that petitioner had been awarded the Bronze Star and other service medals, attorney Owen felt compelled to attempt to obtain petitioner's military records. (Id. at 5.)

The trial court acknowledged that had attorney Owen been involved in petitioner's case from the beginning, he "may very well have prepared [it] differently." (Id. at 12.) Nonetheless, the trial judge expressed frustration that attorney Owen was seeking a continuance of the penalty phase trial after telling the court at the time he replaced attorney O'Brien that he would be prepared to proceed. (Id. at 12-13.) Attorney Owen indicated that when he informed the court that he could replace attorney O'Brien in light of O'Brien's heart condition and would be ready to proceed, he had assumed that attorney O'Brien had followed his (Owen's) advice about preparing for the penalty phase. (Id. at 3 ("I feel that I would have been ready to go and could have gone, had the work that should have been done, had it been done."); and 13 ("I thought he [O'Brien] had followed what I had indicated should be done[.]") Attorney Owen asked for a five-week continuance. (Id. at 16-17.) The trial court indicated that it would only grant a short continuance for "a week or ten days," depending upon whether the prosecution and co-defendant's counsel objected. (Id. at 24.) After an off-the-record consultation with the prosecutor and co-defendant's counsel, the trial court announced that the penalty phase trial would be continued and would commence four weeks later, on April 4, 1983. (RT at 5308-5309.)

On the following day, March 8, 1983, the parties met again, this time with the jurors in attendance. Initially, the trial judge reduced the length of the continuance he had granted the day before, indicating that the penalty phase of the trial would proceed on March 15, 1983 "rather than the original date that we agreed on yesterday." (RT at 5313.) After discussions with the jurors and yet another unreported conference with trial counsel (RT at 5316-5317), the trial court announced the penalty phase portion of the trial would begin on April 11, 1983.

At his deposition in connection with this federal habeas action, attorney Owen recalled asking for two continuances, and getting more time with each request. (Owen Depo., lodged herein Nov. 9, 2007 (see Dkt. No. 363), at 41.) Still, Owen knew that the time he was being given would be insufficient to prepare an adequate penalty phase defense:

I realized that I needed more time to present a proper penalty-phase case, but I felt pressured by Judge Grossfeld to proceed in spite of the lack of full investigation. I did not move for an additional continuance, or move to withdraw, because I believed that Judge Grossfeld could have forced Mr. O'Brien to come back as counsel and represent Mr. Webster. I believed that Mr. O'Brien's health would have been seriously compromised had he been forced back into the case.

(Owen 2007 Decl., Decl. 41 (Dkt. No. 316-1) at ¶ 9.) Ultimately, Owen testified in this habeas proceeding that even at the time he was presenting petitioner's penalty phase defense, he believed he was unable to give petitioner adequate representation. (Owen Depo., lodged herein Nov. 9, 2007 (see Dkt. No. 363), at 40-43.)¹³ In the end, attorney Owen, aided by investigator McCarthy, put together petitioner's penalty phase mitigation case in the one month allotted to them.

13 At his deposition, Owen was questioned repeatedly regarding the inadequate time he had for penalty-phase preparation and how it impacted his presentation of petitioner's case in mitigation to the jury. (Owen Depo. at 39 (counsel did not have adequate time to interview petitioner); 40 (the personal history developed was less than adequate and counsel was unable to find military related witnesses due to time constraints); 53 (counsel did the best job he could but didn't have enough time); 62 (inadequate time to gather petitioner's school records); 97-98 (inadequate time to prepare and interview petitioner's family member witnesses); 100 (the mitigation presentation at trial, compared with the much expanded testimony of the same witnesses in these habeas proceedings, was insufficient because of "[t]ime. Ability of the witness to express it. The ability of us to get it. The ability to know other witnesses that would express to us what was going on. Things of that nature."); and 153-155 (inadequate time to find military witnesses and develop the case in mitigation).) Attorney Owen then opined that it would have taken at least months, possibly years, to investigate, prepare and present a full and complete penalty phase case on behalf of petitioner. (Id. at 77-78; Owen Decl., Decl. 41 (Dkt. No. 316-1) at ¶ 10.)

This abbreviated time to prepare the penalty phase defense was further hindered by the fact that petitioner's family was located in Michigan and Missouri. Investigator McCarthy managed to interview some close family members by telephone in March of 1983, including petitioner's mother and two sisters.¹⁴ Attorney Owen talked with a few doctors regarding petitioner's mental state, but he decided not to use them in presenting the penalty phase defense. (Id. at 30, 61, 150.) The defense did not receive petitioner's military records until March 15, 1983. (Mar. 17, 1983 Trial Investigator Record, Ex. 64 (Dkt. No. 291-1 at consec. pp. 163-164) at 20-21.) Given the limited time available, McCarthy was unable to locate any fellow soldiers who had served with petitioner in time to present them as witnesses in the penalty phase. Similarly, Owen was not able to locate and enlist any expert witnesses to address the Vietnam conflict and petitioner's military service there. As investigator McCarthy testified in these proceedings:

14 McCarthy's records reflect that he interviewed, by telephone, six of petitioner's family members and only one of his teachers: Patricia Libla (sister); Carroll Moss (brother-in-law); Linda Moss (sister); Roy Crutchfield (step-father); Maggie Crutchfield (mother); Dale Webster (brother); and Geraldine Rogers (childhood teacher). (Mar. 17, 1983 Trial Investigator Record, Ex. 64 (Dkt. No. 291-1 at consec. pp. 154-162) at 11-19; Apr. 18, 1983 Trial Investigator Record, Ex. 65 (Dkt. No. 291-1 at consec. p. 169) at 3.) Only petitioner's two sisters and mother were brought out to California to testify at the penalty phase of the trial, however. Reflective of the lack of preparation, the trial transcript of their entire collective testimony spans only eleven pages in length. (RT at 5422-5432.)

If Mr. O'Brien had directed me to contact family members or Vietnam vets earlier in the case, I believe I could have located additional witnesses. We did not have enough time to find witnesses. It wasn't until I finally reviewed Mr. Webster's military records on March 15th that I tried to locate names of people in his battalion we might contact with regard to Mr. Webster's Vietnam service. But I could not locate and contact them before the trial was over. We just ran out of time.

(McCarthy Decl., Decl. 37 (Dkt. No. 288-1 at consec. p. 154) at ¶ 19.) Attorney Owen expressed the same frustration:

Working with the investigator on the case, Michael McCarthy, I was able to gather some evidence, present some family witnesses and obtain Mr. Webster's military records. I did not, however, have time to conduct or supervise a proper penalty-phase investigation to support and present a full penalty-phase case.

(Owen Decl., Decl. 41 (Dkt. No. 316-1) at ¶ 10.) Owen's only meeting with the three Webster family members who came out to California to testify at the penalty phase occurred just before their brief testimony was presented. (Apr.18, 1983 Trial Investigator Record, Ex. 65 (Dkt. No. 291-1 at consec. p. 178-179) at 12-13; Owen Depo. at 50.)

Inadequately prepared, the penalty-phase presentation on behalf of petitioner was exceedingly short. The entire transcript of the penalty phase mitigation case occupies a mere twenty-two pages of the trial transcript. (RT at 5411-5432.) Given the lack of defense investigation and preparation it is not surprising that attorney Owen made a very brief opening statement to the jury; it takes up only one page of the trial transcript. (RT at 5410.) The three witnesses from Washington State Prison (whom defense investigator McCarthy had not even contacted until February of 1983) testified during the penalty phase of the trial that, while incarcerated in Washington, petitioner had enrolled in a welding class and an auto body class and was an "average" student. (RT at 5411-5416.) Certificates reflecting that petitioner had been awarded a Bronze Star for Valor as well an Army Commendation Medal were introduced only as documentary exhibits by petitioner's counsel without any witness testimony whatsoever and without elaboration, explanation or corroboration. (RT at 5420-5421.) As noted above, petitioner's two sisters and mother then testified in a much abbreviated fashion. (RT at 5422-5432.) The direct examination of petitioner's mother consisted of merely four questions. (RT at 5432.)¹⁵ On the heels of that truncated testimony, petitioner's counsel abruptly rested the penalty phase defense.¹⁶

15 The penalty phase testimony of petitioner's mother in its entirety was as follows:

Q Mrs. Crutchfield, you are Larry Webster's mother, are you not?
A Yes, I am.
Q Are you asking this jury to spare Mr. Webster's life?
A Yes, I am.
Q Larry went to Vietnam. Did you see any change in his personality after Viet Nam?
A Yes. There was a complete change in him when he come back.
Q In what way?
A He wasn't the same boy he was when he went in there.

(RT at 5432.) Not surprisingly, given that brief testimony, the prosecutor saw no need to cross-examine. (Id.)

16 Even the trial judge appears to have perhaps been taken somewhat aback by the defense presentation. When petitioner's counsel rested the penalty phase defense, the trial judge called counsel to approach for a bench conference. Thereafter, he advised the jury: "Ladies and gentlemen, again we're in a situation of not having any further witnesses available at this time . . . . I thought we had it coordinated better than we do, but evidently we don't." (RT at 5433.) The jury was then sent home for the remainder of the day after hearing only this very brief testimony. (Id.)

In arguing to the jury that imposition of the death penalty in petitioner's case was called for, the prosecutor took full advantage of this abbreviated and anemic defense penalty phase presentation by denigrating the mitigation case. The prosecutor sarcastically suggested that he had heard the Vietnam War blamed for "everything from murder to measles." (RT at 5490.) The prosecutor rhetorically asked the jury why no one other than a family member had testified to say "something good" about petitioner. (RT at 5492.) The prosecutor also pointed out to the jury that no one "from the mainstream of life" had testified on behalf of petitioner: "Wouldn't you think that there'd be somebody in this world other than a family member that could come in and say yeah, he worked for me, he was a good employee, or I knew him, he was a good guy or something?" (RT at 5492.) Because so little evidence was presented by the defense in the penalty phase trial, in his closing argument attorney Owen was reduced to little more than asking the jury to show mercy to petitioner. (RT 5494-5508.)

Predictably, in light of the crime of conviction and the paucity - indeed the near absence - of mitigation evidence presented by the defense, the jury returned a death verdict with respect to petitioner the following day, April 14, 1983. (RT at 5554-5556).¹⁷

17 Petitioner's co-defendant Madrigal, whose counsel presented an expert psychologist as part of his mitigation case, was sentenced to life without parole.

2. Legal Standards

"The Sixth Amendment right to counsel in a criminal trial includes 'the right to the effective assistance of counsel.'" Summerlin, 427 F.3d at 629 (quoting McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970)). The Sixth Amendment standard for analyzing an ineffective assistance of counsel claim is well established. In order to prevail on a claim of ineffective assistance of counsel, a petitioner must show that his trial counsel's performance "fell below an objective standard of reasonableness" and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984).

a. Deficient Performance

Under the first prong of the Strickland test, a petitioner must show that counsel's conduct failed to meet an objective standard of reasonableness. Strickland, 466 U.S. at 687; Wiggins v. Smith, 539 U.S. 510, 521 (2003). There is "a 'strong presumption' that counsel's representation was within the 'wide range' of reasonable professional assistance." Harrington v. Richter, ___ U.S. ___, ___, 131 S. Ct. 770, 787 (2011) (quoting Strickland, 466 U.S. at 689.) Thus, a petitioner must rebut this presumption by demonstrating that his counsel's performance was unreasonable under prevailing professional norms and was not the product of sound trial strategy. Strickland, 466 U.S. at 688-89. Judicial scrutiny of counsel's performance is highly deferential, and thus the court must evaluate counsel's conduct from his perspective at the time it occurred, without the benefit of hindsight. Id. at 689.

The Supreme Court has "declined to articulate specific guidelines for appropriate attorney conduct and instead ha[s] emphasized that '[t]he proper measure of attorney performance remains simply reasonableness under prevailing professional norms.'" Wiggins, 539 U.S. at 521 (quoting Strickland, 466 U.S. at 688). However, "general principles have emerged regarding the duties of criminal defense attorneys that inform [a court's] view as to the 'objective standard of reasonableness' by which [a court must] assess attorney performance, particularly with respect to the duty to investigate." Summerlin, 427 F.3d at 629. For instance, "strategic choices made after thorough investigation of [the relevant] law and facts relevant to plausible options are virtually unchallengeable." Strickland, 466 U.S. at 690. However, as the Supreme Court has explained:

[S]trategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances.

Wiggins, 539 U.S. at 521 (quoting Strickland, 466 U.S. at 690-91). See also Sanders v. Ratelle, 21 F.3d 1446, 1457 (9th Cir. 1994). Similarly, a decision not to present a particular defense or not to offer particular mitigating evidence is unreasonable unless counsel has explored the issue sufficiently to discover the facts that might be relevant to making an informed decision. Wiggins, 539 U.S. at 522-23. See also Thomas v. Chappell, 678 F.3d 1086, 1104 (9th Cir. 2012) (defense counsel's decision not to call a witness can only be considered tactical if counsel had "sufficient information with which to make an informed decision"), cert. denied, ___ U.S. ___, 133 S. Ct. 1239 (2013); Correll v. Ryan, 539 F.3d 938, 949 (9th Cir. 2008) ("An uninformed strategy is not a strategy. It is, in fact, no strategy at all."); Reynoso v. Giurbino, 462 F.3d 1099, 1112-15 (9th Cir. 2006) (counsel's failure to cross-examine a witnesses about the witness's knowledge of reward money cannot be considered strategic where counsel did not investigate that avenue of impeachment); Stankewitz v. Woodford, 365 F.3d 706, 719 (9th Cir. 2004) ("[T]here is no record evidence that [counsel] ever hired an investigator or interviewed Stankewitz's teachers, foster parents, psychiatrists, psychologists or anyone else who may have examined or spent significant time with him during his childhood and youth."); Jennings v. Woodford, 290 F.3d 1006, 1016 (9th Cir. 2002) (counsel's choice of presenting an alibi defense and rejecting a mental health defense was not a reasonable strategy where counsel failed to investigate the possible mental defenses).

"[P]retrial investigation and preparation are the keys to effective representation of counsel." United States v. Tucker, 716 F.2d 576, 581 (9th Cir. 1983). See also Daniels v. Woodford, 428 F.3d 1181, 1203 (9th Cir. 2005) ("We have found counsel 'ineffective where he neither conducted a reasonable investigation nor made a showing of strategic reasons for failing to do so.'") (quoting Hendricks v. Vasquez, 974 F.2d 1099, 1109 (9th Cir. 1992)). This duty on the part of defense counsel to investigate begins prior to trial. It is well-recognized that competent strategy decisions cannot be made regarding presentation of mitigating evidence without a foundation of knowledge based upon a thorough defense investigation that was completed long before jury selection begins. Williams v. Taylor, 529 U.S. 362, 395 (2000) (holding that the petitioner received ineffective assistance in connection with the penalty phase of his trial and noting the record established "that counsel did not begin to prepare for that phase of the proceeding until a week before the trial"); Earp v. Ornoski, 431 F.3d 1158, 1175 (9th Cir. 2005) ("The Supreme Court has conveyed a clear, and repeated, message about counsel's sacrosanct duty to conduct a full and complete mitigation investigation before making tactical decisions . . . [.]").

The Sixth Amendment right to effective assistance of counsel "extends to 'all critical stages of the criminal process,' including capital sentencing." Correll, 539 F.3d at 942 (citations omitted). Indeed, it has been recognized that "'[i]t is imperative that all relevant mitigating information be unearthed for consideration at the capital sentencing phase.'" Stanley v. Schriro, 598 F.3d 612, 624 (9th Cir. 2010) (quoting Caro v. Calderon, 165 F.3d 1223, 1227 (9th Cir. 1998)). See also Brown v. Ornoski, 503 F.3d 1006, 1013 (9th Cir. 2007) ("In numerous cases, this court and the Supreme Court have explained and reiterated this high standard for investigation in capital cases.") (and cases cited therein). As explained by the Ninth Circuit, counsel in a capital case has an affirmative duty to unearth all relevant mitigating information because

[t]he determination of whether to impose a death sentence is not an ordinary legal determination which turns on the establishment of hard facts. The statutory factors give the jury broad latitude to consider amorphous human factors, to weigh the worth of one's life against his culpability.

Wallace v. Stewart, 184 F.3d 1112, 1117 (9th Cir. 1999). Therefore, specifically in the capital case context, the Ninth Circuit has held that "'[t]o perform effectively . . . counsel must conduct sufficient investigation and engage in sufficient preparation to be able to 'present[ ] and explain[ ]' the significance of all the available [mitigating] evidence.'" Allen v. Woodford, 395 F.3d 979, 1000 (9th Cir.) (citing Mayfield v. Woodford, 270 F.3d 915, 927 (9th Cir. 2001) (en banc)). See also Wiggins, 539 U.S. at 524 (Defense counsel should attempt to discover "'allreasonably available mitigating evidence and evidence to rebut any aggravating evidence that may be introduced by the prosecutor'") (quoting ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases ("ABA Guidelines") 11.4.1(c), p. 93 (1989)); Correll, 539 F.3d at 942 (discussing a capital defense attorney's duty to conduct a prompt investigation with respect to both the guilt and penalty phases as guided by the ABA standards); Summerlin, 427 F.3d at 630 (with respect to counsel's role in presenting penalty phase mitigating evidence, "[t]he duty to investigate is critically important"); Douglas v. Woodford, 316 F.3d 1079, 1088 (9th Cir. 2003).

Accordingly, "[c]ounsel has a duty at penalty phase 'to conduct a thorough investigation of the defendant's background.'" Correll, 539 F.3d at 942 (quoting Williams, 529 U.S. at 396). See also Mayfield, 270 F.3d at 927 (same). Mitigating evidence that counsel should consider includes "medical history, educational history, employment and training history, family and social history, prior adult and juvenile correctional experience, and religious and cultural influences." Wiggins, 539 U.S. at 524 (citing ABA Guidelines 11.8.6, p. 133). See also Correll, 539 F.3d at 943; Summerlin, 427 F.3d at 630 (defense counsel in a capital case have a "'duty to investigate and present mitigating evidence of mental impairment' . . . includ[ing] examination of mental health records") (quoting Bean, 163 F.3d at 1080). Furthermore, "counsel has an affirmative duty to provide mental health experts with information needed to develop an accurate profile of the defendant's mental health." Caro v. Woodford, 280 F.3d 1247, 1254 (9th Cir. 2002). See also Summerlin, 427 F.3d at 630 ("The defendant's history of drug and alcohol abuse should also be investigated." ) (citing Jennings, 290 F.3d at 1016-17). Where the record "suggest[s] that certain mitigating evidence may be available, those leads must be pursued." Lambright v. Schriro, 490 F.3d 1103, 1117 (9th Cir. 2007). See also Stankewitz v. Woodford, 365 F.3d at 706 (finding ineffective assistance where counsel failed to thoroughly investigate the defendant's childhood, history of drug abuse, and mental health condition notwithstanding the fact that counsel was on notice that such an investigation might yield mitigating evidence); Summerlin, 427 F.3d at 632 (finding ineffective assistance where counsel failed to obtain readily available evidence concerning possible mental state mitigation and his client's prior attorney told counsel there were indications that the defendant suffered from a mental illness); Mayfield, 270 F.3d at 928 (finding ineffective assistance where counsel did not consult with appropriate medical experts nor collect the relevant records after "his investigator's limited efforts revealed evidence of diabetes and substance abuse" and failed to explain to the jury the relevance of the evidence that was presented).

Finally, in addition to conducting an investigation to discover all mitigating evidence, defense counsel in a capital case "also has an obligation to present and explain to the jury all available mitigating evidence." Hamilton v. Ayers, 583 F.3d 1100, 1113 (9th Cir. 2009) (citing Correll, 539 F.3d at 946). See also Rompilla v. Beard, 545 U.S. 374, 385-90 (2005) (holding that defense counsel rendered ineffective assistance where she obtained the petitioner's prior conviction file but failed to adequately review it prior to the petitioner's sentencing hearing); Stankewitz v. Wong, 698 F.3d 1163, 1172 (9th Cir. 2012) ("[E]ven if we were to assume that Goodwin was aware of all of the mitigating evidence in Sciandra's files, he was still deficient for failing to present the evidence with no tactical basis for doing so.")

b. Prejudice

Even where counsel's performance is found to be deficient, in order to prevail on such a claim a petitioner is required to show that counsel's conduct prejudiced him. Strickland, 466 U.S. at 691-92. To establish prejudice, a petitioner must demonstrate that there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A reasonable probability is one "'sufficient to undermine confidence in the outcome'" but is "less than the preponderance more-likely-than-not standard." Summerlin, 427 F.3d at 640, 643 (quoting Strickland, 466 U.S. at 693-94). Nonetheless, "[t]he likelihood of a different result must be substantial, not just conceivable." Richter, 131 S. Ct. at 792.

Accordingly, "[i]n establishing prejudice under Strickland, it is not necessary for the habeas petitioner to demonstrate that the newly presented mitigation evidence would necessarily overcome the aggravating circumstances." Correll, 539 F.3d at 951-52 (citing Williams, 529 U.S. at 398). See also Rompilla, 545 U.S. at 393 ("[A]lthough we suppose it is possible that [the sentencer] could have heard it all and still have decided on the death penalty, that is not the test."). Instead, in evaluating prejudice, the court must "compare the evidence that actually was presented to the jury with the evidence that might have been presented had counsel acted differently," Bonin v. Calderon, 59 F.3d 815, 834 (9th Cir. 1995), and evaluate whether the difference between what was presented and what could have been presented is sufficient to "undermine confidence in the outcome" of the proceeding, Strickland, 466 U.S. at 694. See also Stanley, 598 F.3d at 625. Prejudice is established if "there is a reasonable probability that at least one juror would have struck a different balance" between life and death. Wiggins, 539 U.S. at 537.¹⁸

18 The Ninth Circuit has recognized that "[t]he bar for establishing prejudice is set lower in death-penalty sentencing cases than in guilt-phase challenges and noncapital cases." Cox v. Ayers, 613 F.3d 883, 897 (9th Cir. 2010) (citing Silva v. Woodford, 279 F.3d 825, 847 (9th Cir. 2002) (stating that "we must be especially cautious in protecting a defendant's right to effective counsel at a capital sentencing hearing"). See also Stanley v. Schriro, 598 F.3d 612, 624 (9th Cir. 2010) (although trial counsel's lack of effectiveness was not prejudicial at the guilt phase, during sentencing, 'where mitigation evidence may well be the key to avoiding the death penalty,' our analysis differs") (quoting Wallace v. Stewart, 184 F.3d 1112, 1117 (9th Cir. 1999)).

When examining the effect of defense counsel's failure to unearth and present mitigating evidence at the penalty phase of a capital case, the Supreme Court has emphasized the relevance of evidence of a petitioner's abusive childhood and mental health problems. This is because there is a general "belief, long held by this society, that defendants who commit criminal acts that are attributable to a disadvantaged background, or to emotional and mental problems, may be less culpable than defendants who have no such excuse." Boyde v. California, 494 U.S. 370, 382 (1990) (quotation and emphasis omitted). The Ninth Circuit recently described the Supreme Court's consideration of evidence of such deficient performance on the part of defense counsel:

In Wiggins . . . a capital habeas petitioner's defense counsel failed to introduce social history mitigation evidence during the penalty phase, including evidence that "Wiggins experienced severe privation and abuse in the first six years of his life while in the custody of his alcoholic, absentee mother[, and that h]e suffered physical torment, sexual molestation, and repeated rape during his subsequent years in foster care." Wiggins, 539 U.S. at 535. The Court pointed out that this is the type of evidence that is "relevant to assessing a defendant's moral culpability," id., and held that the failure to introduce this evidence at the penalty phase was prejudicial: "[H]ad the jury been confronted with this considerable mitigating evidence, there is a reasonable probability that it would have returned with a different sentence." Id. at 536.

Stankewitz v. Wong, 698 F.3d at 1175 (alterations in original).

3. Analysis

a. Deficient Performance

Petitioner's counsel clearly fell below an objective standard of reasonableness under prevailing professional norms by failing to conduct pretrial investigation for potential mitigating evidence and in their hurried and abbreviated penalty phase presentation on petitioner's behalf. It is clear that a proper investigation to unearth all available mitigating evidence on behalf of petitioner was never conducted in this case. Instead, counsel who substituted into the case on petitioner's behalf just before the penalty phase trial began¹⁹ conducted an insufficient and inadequate last-minute scramble for mitigation evidence. That hurried and incomplete effort resulted in a defense presentation at the penalty phase that spanned a mere twenty-two pages of the trial transcript - a tiny fraction of the important and compelling mitigation evidence that was obviously available and should have been presented on petitioner's behalf.

19 As to attorney Owen, the deficient performance was in large part attributable to the circumstances he faced upon his late, emergency entry into the case on petitioner's behalf. Nonetheless, the result was the same - ineffective assistance of defense counsel with respect to the penalty phase of petitioner's trial.

A last-minute effort to put on an adequate mitigation case is, in a case like this one, doomed from the start. It is simply not possible to conduct a proper penalty-phase investigation in a mere month. A thorough penalty phase investigation should have commenced months before the guilt phase trial commenced.²⁰ Petitioner's counsel was well aware that petitioner had no roots in California. Petitioner had grown up in Missouri, Arkansas and Michigan and his family was located over a thousand miles away from Sacramento. Petitioner had served his country in the Vietnam War with men who had been dispersed all over the country after their military service ended. From 1972 on, petitioner had lived the life of a transient, moving throughout the country and eventually ending up incarcerated in the state of Washington in the late 1970's.

20 This is what attorney Owen was led to believe had occurred, as he had recommended, by attorney O'Brien. Obviously, such was not the case. It now appears clear that essentially no penalty phase investigation had been conducted prior to Owen's substitution into the case.

As petitioner's Strickland expert has attested in this habeas proceeding, and as the relevant case law makes crystal clear, the minimally necessary tasks of a competent penalty phase investigation - gathering government, school, military, medical and employment records; interviewing family members; identifying, locating and interviewing witnesses; corroborating facts and assessing and cultivating experts - require more than a few weeks under any circumstances. (Nolan Decl., Decl. 45 (Dkt. No. 359-1) at ¶ 31.) There was no strategic or tactical reason for withholding mitigating evidence or failing to conduct a full background investigation in this case. (Id. at ¶ 40.) As discussed above, the testimony of attorney Owen and defense investigator McCarthy makes clear the futility of putting together an adequate mitigation case where no penalty-phase investigation has been conducted until the guilt phase of the trial is concluded. Both testified, and the undersigned finds fully credible, that there is simply not sufficient time to conduct a full investigation and gather the necessary information and witnesses at that point. (McCarthy Decl., Decl. 37 (Dkt. No. 288-1 at consec. p. 154) at ¶ 19 (indicating that the defense investigator was unable to search for members of petitioner's army battalion until the military records were belatedly received by the defense on March 15, 1983, and that by then, the defense lacked sufficient time to locate anyone)); (Owen Depo., lodged herein Nov. 9, 2007 (see Dkt. No. 363), at 40, 48 (describing counsel's desire to locate men who had served with petitioner in Vietnam as well as experts who could discuss the soldier's Vietnam experience to testify as part of the defense penalty phase case but inability to do so because of insufficient time).)²¹

21 Contrary to respondent's argument, the record before this court reflects that various witnesses of this type could have been located with even a little timely preparation and a modicum of diligence on the part of defense counsel. Indeed, the names of a number of such witnesses located by petitioner's habeas counsel and presented in these proceedings were specifically mentioned in petitioner's military records. Other such witnesses have described in these proceedings how they maintained regular contact with other members of petitioner's battalion. Those easily obtained leads could have been identified and pursued by minimally diligent trial counsel, just as petitioner's habeas counsel did in these proceedings.

Ultimately, attorney Owen testified that, had he been able to properly prepare for petitioner's penalty phase trial, he would have submitted to the jury the mitigating evidence, including the evidence relating to petitioner's military service and the circumstances in which it was rendered, that has been uncovered and presented by petitioner's habeas counsel in these proceedings. (Owen 2007 Decl., Decl. 41 (Dkt. No. 316-1) at ¶ 11.)

Trial counsel's failure to begin the investigation for penalty-phase mitigating evidence until after the guilt phase trial had concluded, the consequent superficial and incomplete penalty phase investigation and the inadequate presentation of the mitigation case, fell far below a reasonable level of professional conduct. Under circumstances similar to those presented in this case, courts have consistently found deficient performance on the part of defense counsel:

Karis' counsel presented mitigation evidence for only 48 minutes. In that short time, counsel called witnesses, eliciting that Karis had
exhibited artistic and academic talent, that his mother had been divorced and that he had saved his brother from drowning when he was a child. While defense counsel offered this meager presentation, the district court findings are replete with evidence of abuse that should have been uncovered and presented by counsel upon any reasonable investigation and representation. Counsel's failure to present such substantial mitigating evidence was woefully inadequate and kept crucial information from the jury faced with sentencing Karis to life or death.

Karis v. Calderon, 283 F.3d 1117, 1135 (9th Cir. 2002). See also, Wiggins, 539 U.S. at 524-25 (finding that the petitioner was denied effective assistance of counsel because his trial counsel failed to conduct an investigation that would have revealed a background of sexual and physical abuse, borderline mental retardation and troubling experiences in the foster care system); Stankewitz v. Wong, 698 F.3d at 1173 ("It is simply untenable that [counsel's] decision to forgo powerful mitigating evidence and instead put on his paltry penalty phase presentation was made 'in the exercise of reasonable professional judgment.'") (quoting Cullen v. Pinholster, ___ U.S. ___, ___,131 S. Ct. 1388, 1403 (2011)); Daniels, 428 F.3d at 1203-05 (finding that counsel's decision to delay his investigation and preparation for the penalty phase trial until it was essentially too late to permit the development, and therefore introduction, of meaningful mitigation evidence was without explanation or justification); Allen, 395 F.3d at 1001 ("Counsel's untimely, hasty, and incomplete investigation of potential mitigation evidence for the penalty phase fell outside the 'range of reasonable professional assistance.'").

b. Prejudice

In determining whether counsel's deficient performance prejudiced the outcome of petitioner's trial, the court "must compare the evidence that actually was presented to the jury with that which could have been presented had counsel acted appropriately." Thomas, 678 F.3d at 1102 (quoting Karis, 283 F.3d at 1133). See also Cannedy v. Adams, 706 F.3d 1148, 1161 (9th Cir. 2013) (same), cert. denied ___ U.S. ___, 134 S. Ct. 1001 (2014); Bonin, 59 F.3d at 834.

Here, other than the underlying crime of conviction, the prosecution introduced as aggravation evidence three relatively minor prior convictions: (1) a 1974 second degree burglary conviction (stipulated to by counsel without testimony or details); (2) a 1977 second degree assault conviction (stipulated to by counsel without testimony or details); and (3) a robbery that occurred in Pacoima, California, the day after the homicide (presented via the testimony of the victim and corroborated by the testimony of the co-perpetrator Bruce Smith and a videotape). (RT at 5352-5390.) As described above, the mitigation presentation on behalf of petitioner during the penalty phase trial was exceedingly brief, as if "the penalty phase was a 'strange blip' at the end of the trial, not substantially different from the off-the-rack sentencing hearing." Hendricks v. Calderon, 70 F.3d 1032, 1043 (9th Cir. 1995). In contrast, the mitigation evidence that could have been presented had petitioner's counsel conducted an adequate investigation and properly developed the evidence was, as has now been established, quite substantial and persuasive.

At the evidentiary hearing granted by this court with respect to his claim that he received ineffective assistance of counsel at the penalty phase of his trial, petitioner has presented the testimony of numerous witnesses. Those witnesses have testified in this habeas proceeding about petitioner's personal history of instability, brutality and alcoholism in his family; petitioner's impoverished and destitute childhood; the particular effects of Ozark culture on petitioner's personality and development; petitioner's helpful and quiet nature prior to his military service; petitioner's heroism and bravery under terrifying combat conditions experienced during the Vietnam War; the devastating impact on petitioner's life caused by his combat experience in Vietnam; his sad and failed attempts to adjust to state-side life after returning from Vietnam; and petitioner's predisposition toward, and subsequent fall into, drug and alcohol dependence. Those witnesses included petitioner's close family members, extended family members on both his paternal and maternal lines, neighbors and childhood friends from his formative years, teachers, friends and employers who knew him during his adolescence in Michigan, comrades-in-arms who served in his battalion in Vietnam, his commanding officer in Vietnam, his platoon squad leader in Vietnam, the officer who witnessed his unraveling after Vietnam, and three experts.²² Added to this testimony was demonstrative evidence in the form of contemporaneous photographs, military orders and citations, articles from the Tropic Lightning News (the newsletter of the 25th Infantry Division during the Vietnam War), corroborating medical and social history records and informative maps. (See generally, Exs. 10-23 (Dkt. No. 290-1 at consec. pp. 19-64).)

22 Military historian and Vietnam War expert Professor Eric M. Bergerud, PhD of Lincoln University provided a detailed description of the conditions and context of the 25^th Division combat soldier's Vietnam experience, including the dangerous landscape, constant anxiety, sleep deprivation, onerous climate and lack of safe zones encountered. (Bergerud Decl., Decl. 43 (Dkt. No. 327-1 at consec. pp. 50-68).) Psychiatrist Pablo Stewart, M.D., an expert in the area of substance abuse and related psychiatric and psychological disorders as well as treatment thereof, provided testimony describing the nature of addiction, the genetic, social and psychological aspects of addiction and the way in which petitioner was particularly vulnerable to the lure of substance abuse and addiction. (Stewart Decl., Decl. 44 (Dkt. No. 327-1 at consec. pp. 70-104).) Lastly, licensed Marriage and Family Therapist Marilyn P. Cornell, a family dynamics expert, provided a detailed explanation of the effect of petitioner's family structure, childhood and background on his character and personality. (Cornell Decl., Decl. 42 (Dkt. No. 327-1 at consec. pp. 1-48).)

The court summarizes this mitigation evidence, which was available but never developed and presented by petitioner's trial counsel, below.

i. Petitioner's Family History of Instability, Brutality and Alcoholism ²³

23 The witnesses who provided testimony regarding this portion of petitioner's background included: Virginia Webster Beaulieu, Marna Faye Bosek, Marilyn Cornell, Maggie Crutchfield, Patsy Helm Dillon, Marvin Jones, Pauline Jones, Patricia Libla, Lavern Marler, Leon Marler, Lenora Mitchell, Betty Shoemaker, Webster Smith, James O. Webster, Dale Webster, Linda Webster and Lindell Webster.

Petitioner was born in 1948 into an impoverished, unstable family living in the foothills of the Ozark Mountains in northeastern Arkansas, a few miles from the Missouri border. He was the middle child of five and the eldest boy, with two older sisters and two younger brothers. His early childhood was characterized by instability, brutality, poverty and the detrimental and violent effects of his father's alcoholism.

The maternal side of petitioner's family had roots in rural Missouri; his maternal grandmother was part Cherokee. (Crutchfield Decl., Decl. 1 (Dkt. No. 286-1 at consec. p. 2) at ¶¶ 2-3.) His mother's parents were squatters living in a crude "single box" house in a small valley referred to as the "Fawbush Holler," in Wayne County, Missouri, a few miles from the general store and post office that comprised the "town" of Shook. (Id. at ¶ 6.) Dementia, illiteracy and mental retardation ran in the family. (Id. at ¶ 5.) Maggie Williams, petitioner's mother, went to school at the Yokem school, the same rural one-room, multi-class schoolhouse where she would later send her own children. (Id. at ¶ 11.)

On his paternal side, petitioner's father Fred Webster was one of ten children born to a farmer/tavern keeper living near Success, Arkansas, roughly thirty miles south of Poplar Bluff, Missouri. (Mitchell Decl., Decl. 5 (Dkt. No. 286-1 at consec. p. 57) at ¶ 2.) Fred Webster was one of six brothers, all of whom had problems with alcohol and violence. (James Webster Decl., Decl. 8 (Dkt. No. 286-1 at consec. p. 87-89) at ¶¶ 31-36.) After a period of "hoboing" around the country and a brief, failed marriage, Fred Webster was inducted into the Army in 1941. (Id. at ¶¶ 15, 19-21.)

The instability and anxiety that characterized the relationship between petitioner's parents was readily evident even before petitioner's birth. Fred Webster married Maggie Williams, who was already pregnant, while on a short leave from the Army in 1944. (Crutchfield Decl., Decl. 1 (Dkt. No. 286-1 at consec. p. 4) at ¶ 17.) Less than six months later, their first child, Linda, was born. (Id. at ¶ 18.) From the time Fred Webster returned from Europe in 1945 until Maggie left him for the final time in 1953, the relationship was one of instability, drunkenness and brutality, characterized by arguments that, in later years, flared into physical violence. (Lindell Webster Decl., Decl. 9 (Dkt. No. 286-1 at consec. p. 97-98) at ¶¶ 13-14.) Fred Webster was unable to hold a job, would spend any money he had on alcohol, and would frequently go on multi-day benders, drinking himself into unconsciousness. (Beaulieu Decl., Decl. 6 (Dkt. No. 286-1 at consec. p. 68) at ¶ 28.)

In the three years leading up to petitioner's birth, his parents had a second child, relocated to California, separated due to their constant arguing and Fred's drunkenness, returned separately to the mid-west and tentatively reconciled. (Cornell Decl., Decl. 42 (Dkt. No. 327-1 at consec. p. 14) at ¶¶ 41-42, 45.) For the first few years of petitioner's life, he lived in a converted corn crib - tar-paper shack with a tin roof, outside of Success, Arkansas. (Lindell Webster Decl., Decl. 9 (Dkt. No. 286-1 at consec. p. 97) at ¶ 12.) The shack had cracks on the floor and rats would come up inside, on one occasion biting petitioner's sister. (Patricia Libla Decl., Decl. 3 (Dkt. No. 286-1 at consec. p. 33) at ¶ 5.) Fred's sister Virginia described this time in the family's life:

Everybody around that area of Arkansas was pretty poor at that time, but no one was as poor as Fred and Maggie. They were living
on almost nothing. Fred might have been doing some farm work and I think they might have been receiving some type of welfare, but Fred was pretty much drinking it all away. Fred would go on drinking binges and be gone . . . [.]

(Beaulieu Decl., Decl. 6 (Dkt. No. 286-1 at consec. p. 68) at ¶ 28.)

Maggie, forced to work picking and chopping cotton and at other tasks to scrape by, had little time for her five children. (Crutchfield Decl., Decl. 1 (Dkt. No. 286-1 at consec. p 10) at ¶¶ 53, 55.) The children essentially were left to fend for themselves. Petitioner's father continued to deteriorate into drunkenness and brutalized both Maggie and the children. As petitioner's mother explained in her declaration:

Not long after Larry was born Fred beat me for the first time. The beating continued the rest of the time we were together. I was kicked and knocked, mostly when I was pregnant, and I was pregnant every two years. If I said anything Fred didn't like, he'd smack me . . . I think Fred took out on me the things that were bothering him. He'd hit me just about every time he'd come home drunk . . . . The kids saw Fred hit me. When he'd start yelling, they'd try to get out of the way. If the kids came in when Fred and I were fighting, Fred would smack them and tell them to get out. He'd only do this when he was drunk; he never hit them when he was sober.

(Id. at ¶ 38.) According to accounts, Fred also whipped petitioner's sister Linda, as well as petitioner and his younger brother Dale. Cousin James O. Webster described one incident he witnessed in late 1951:

One day while I was at my grandmother's house, Maggie stopped by with her kids . . . . Fred drove up a little bit later and was very drunk. Fred started waving around a shotgun . . . . It was a pretty big gun. Fred was hollering for Maggie, who stayed inside the house with her kids . . . . I tried talking to Fred from behind the door. I was trying to calm him down since he was acting pretty crazy. After a while, Fred got back in the car and left.

(James Webster Decl., Decl. 8 (Dkt. No. 286-1 at consec. p. 90) at ¶ 38.) As petitioner's sister Linda grew older, she was sexually molested by her father. (Linda Webster Decl., Decl. 2 (Dkt. No. 286-1 at consec. p. 23) at ¶ 14.)

In early 1953, Fred was released from jail after the third in a series of drunk-driving convictions and moved the family to St. Louis, where he and Maggie got factory jobs. (Crutchfield Decl., Decl. 1 (Dkt. No. 286-1 at consec. p. 9) at ¶ 46.) Fred's drinking got worse, and petitioner and his siblings were again left largely to fend for themselves. (Id. at ¶¶ 47-49.) After a particularly egregious drunken episode during which Fred fell upon and injured the family's youngest child Danny, Maggie gathered the children, fled St. Louis and traveled back to her parents' home in the Fawbush Holler in southeastern Missouri. (Id. at ¶¶ 50-51.) Except for one aborted attempt at a visit in "the holler," the children never saw their father again. (Id. at ¶ 59.)

Petitioner has four siblings: older sisters Linda (born 1944) and Patricia (born 1946), and younger brothers Dale (born 1950) and Daniel (born 1952). (Id. at ¶¶ 18, 25, 43, 46.) All of his siblings suffer from the repercussions of their traumatic upbringing. Linda had difficulties in school, suffered from depression, spent time in the state mental hospital and experienced horrible nightmares about her father for years. (Linda Webster Decl., Decl. 2 (Dkt. No. 286-1 at consec. p. 28) at ¶¶ 35, 36.) Patricia suffers from depression as well. (Patricia Libla Decl., Decl. 3 (Dkt. No. 286-1 at consec. p. 44) at ¶ 40.) Dale has long dealt with his own drinking problem, would get irrationally angry, and is currently on medication to calm his nervous anxiety. (Dale Webster Decl., Decl. 4 (Dkt. No. 286-1 at consec. p. 53) at ¶ 25.) Danny is very reclusive and avoids any social interaction to an extreme degree. (Crutchfield Decl., Decl. 1 (Dkt. No. 286-1 at consec. pp. 12, 16) at ¶¶ 65, 89.)

ii. Petitioner's Childhood of Poverty and Hardship ²⁴

24 The witnesses who provided testimony addressing this portion of petitioner's background included: Delmer Barks, Maggie Crutchfield, Patsy Helm Dillon, John Henry Helm, Jimmy Jones, Marvin Jones, Pauline Jones, Patricia Libla, David Libla, Lavern Marler, Leon Marler, Lucinda Reutzel, Geraldine Rogers, Dale Webster, Linda Webster and Albert Williams.

As noted above, during petitioner's early years in Arkansas his family was exceptionally poor, living in a converted corn crib that they did not own. (Beaulieu Decl., Decl. 6 (Dkt. No. 286-1 at consec p. 68) at ¶ 27.) In the summer of 1953, when petitioner was just short of five years old, Maggie Webster and the five children left Fred Webster. (Crutchfield Decl., Decl. 1 (Dkt. No. 286-1 at consec. p. 10) at ¶ 51.) Nonetheless, their financial situation did not improve; if anything, it got worse. (Id. at ¶¶ 53-55, 60.)

For the remainder of petitioner's childhood, his broken family lived a life of abject and isolated rural poverty, without electricity, decent heating, medical care, telephone or plumbing, with little to eat, homemade or gifted clothes, and virtually no material possessions. (Crutchfield Decl., Decl. 1 (Dkt. No. 286-1 at consec. pp. 10-11) at ¶¶ 52, 60.) Patsy Helm Dillon, the nearest neighbor to the Fawbush Holler, described their situation:

They had nothing. It was pitiful how poor they were. They were different. They wore homemade clothes and were barefoot most of the time . . . . Maggie always had to fight with the world.

(Dillon Decl., Decl. 18 (Dkt. No. 287-1 at consec. p. 2) at ¶ 5.) At first, Maggie and the children lived in the McCollum cabin, a previously abandoned one-room log cabin on stone blocks. (Id. at ¶ 7.) Later, Maggie's father and brother built a rough, small shack for them in the Fawbush Holler near the Williams home. (Id. at ¶ 8.) The structure was "thrown together with sawmill lumber," with no plumbing or electricity. (Id.) Water was carried to the shack from a spring a quarter of a mile away. (Id.) In the shack, they shared three beds among the six family members. (Linda Webster Decl., Decl. 2 (Dkt. No. 286-1 at consec. p. 26) at ¶ 25.) They had no vehicle and walked everywhere except when they could hitch rides or use the horse-drawn wagon owned by Maggie's parents. (Helm Decl., Decl. 19 (Dkt. No. 288-1 at consec. pp. 3-4) at ¶ 7.)

In an area known for its poverty and lack of economic development, petitioner's family was unique in its destitution. They were the poorest family in the area or, as one witness phrased it, "poorer than poor." (David Libla Decl., Decl. 21 (Dkt. No. 288-1 at consec. p. 28) at ¶ 4.) Many of those living in this community remarked on how difficult and unusual it was to have a single woman raising a large family by herself there. (Barks Decl., Decl. 20 (Dkt. No. 288-1 at consec. p. 22) at ¶ 19; Rogers Decl., Decl. 39 (Dkt. No. 300-1 at consec. p. 2) at ¶ 4.) Maggie brought in some money in the fall picking cotton, collected some welfare and latched onto some temporary jobs when she could. (Crutchfield Decl., Decl. 1 (Dkt. No. 286-1 at consec. p. 11) at ¶ 55.) When she was away, the children tended themselves, with the oldest daughter, Linda, attempting to care for her younger siblings. (Linda Webster Decl., Decl. 2 (Dkt. No. 286-1 at consec. p. 21) at ¶ 3.) Petitioner's mother did the best she could under these circumstances, and fought to protect her children from outsiders. Neighbor Patsy Helm Dillon noted her "fight-for- survival attitude that the world was out to get her." (Dillon Decl., Decl. 18 (Dkt. No. 287-1 at consec. p. 2) at ¶ 4.) However, one result of her difficulties was a certain lack of emotional connection to her children. "In this environment, Maggie Webster could do little to nurture her children or help them grow into fulfilled adults; her main task was sheer survival." (Cornell Decl., Decl. 42 (Dkt. No. 327-1 at consec. p. 34) at ¶ 91.)

Petitioner attended the one-room Yokem school, a two mile walk through the woods from the Fawbush Holler. (Rogers Decl., Decl. 39 (Dkt. No. 300-1 at consec. p. 1) at ¶ 1; Helm Decl., Decl. 19 (Dkt. No. 288-1 at consec. p. 8) at ¶ 16.) At the Yokem school, one teacher had to teach as many as 25 students in grades one through eight. (Marler Decl., Decl. 13 (Dkt. No. 286-1 at consec. p. 121) at ¶ 8.) Expert witness Marilyn Cornell commented in these habeas proceedings on the schooling of the Webster children as follows:

The one-room country school of [petitioner's] childhood may sometimes be viewed in a soft light of nostalgia, but it was an primitive institution at best, and provided little opportunity or significant education. Teachers, forced to simultaneously instruct eight different grades, were ill-prepared and under-trained. There were no adjunct student services to meet the needs of children, no extra help or specialization. Nor were there extracurricular activities, social programs or opportunities available to help develop social and problem-solving skills.

(Cornell Decl., Decl. 42 (Dkt. No. 327-1 at consec. p. 34) at ¶ 91.)

In the early 1960's, when petitioner was 12 or 13, his mother and her children left the holler and moved to "the old Warren place," an abandoned farmhouse. (Crutchfield Decl., Decl. 1 (Dkt. No. 286-1 at consec. p. 13) at ¶ 68.) The farmhouse had no plumbing, and was cold and run-down, but it was a step up from the shack they had come from, if only because it had electricity. (Id.) Maggie and her children were allowed to live there rent-free, though she did have to pay for electricity and propane gas. (Id.) About this same time, the Yokem school closed and, from their farmhouse, petitioner and his siblings had to walk about a mile to the road, where they would catch a bus to attend school in Greenville. (Id. at ¶ 71.) Petitioner could never participate in after-school activities, such as sports teams, because he had to catch the bus back to the Shook area immediately after school. (Id.)

iii. Petitioner's Unique Cultural Background²⁵

25 The witnesses who provided testimony addressing this aspect of petitioner's background included: Delmer Barks, expert witness Marilyn Cornell, Wendell Crutchfield, John Henry Helm, Jimmy Jones, Leon Marler and Hassie Johnson.

As noted, petitioner grew up in the Ozark area, a region that was, at the time, isolated, remote, insular and "populated by 'the most deliberately unprogressive people in the United States.'" (Cornell Decl., Decl. 42 (Dkt. No. 327-1 at consec. p. 31) at ¶ 83.) Teacher Delmer Barks noted that Wayne County, where the Fawbush Holler is located, "is a hill county, very poor county . . . where people tried to congregate in the creek valleys or river valleys in order to produce enough food to survive on." (Barks Depo., lodged herein Dec. 19, 2006 (see Dkt. No. 296), at 7, 9.) There were few roads and little mobility, and everyone knew everyone else. (Cornell Decl., Decl. 42 (Dkt. No. 327-1 at consec. p. 33) at ¶ 86.) Most families were poor, scraping out a living from subsistence farming. (Id. at ¶¶ 84-86.) Because of the small population and unproductive soil, most families lived in remote locations, miles from their closest neighbors. (Id.) People there were generally self-sufficient, independent, honest and distrustful of outsiders. (Id. at ¶ 83.)

Growing up in such isolation, it was natural to be both uncomfortable around strangers and fiercely independent. Witnesses raised in the area around this time, including Delmer Barks, described how uncomfortable they were in cities like St Louis and how they eventually moved back to the Ozark region to avoid "the hustle and bustle." (Barks Decl., Decl. 20 (Dkt. No. 288-1 at consec. p. 19) at ¶ 8.) Expert witness Marilyn Cornell summarized the impact of this cultural background on petitioner:

Of great significance and one of the earliest influences that shaped Larry Webster's life is the cultural background in which Larry was raised. It had a profound effect on the formation of his personality and later behavior. Wayne County, Missouri, and Randolph County, Arkansas, constitute a section of the Ozark region . . . . In the 1950's, when Larry Webster was a child, the people of this area were secretive, sensitive, impoverished, insular, and suspicious of outsiders. A 1966 report written for the United States Department of Agriculture noted:

Because of the isolated nature of the early settlements, the people in the heart of the Ozark Region have retained much of their folk culture. Value systems tend to be particularistic, and self-sufficiency of the local community

has bred distrust for values from outside the community. Personal ingenuity in meeting social, economic, and family problems is a cultural trait derived from this orientation. With this social background, people of the region have been slow to assimilate urban values and ways of living, and economic changes have lagged behind those in most of the Nation.

* * *

The Webster, Fawbush, and Williams families certainly shared these characteristics as they suffered from the poverty, isolation, and lack of assimilation characteristic of the population of this region. Larry Webster's family, on both his mother and father's sides, lacked sophistication and adaptability, and they did not have any viable social systems beyond the family, the one-room school and the immediate neighbors. They were rural, uneducated people, scraping out an existence in a difficult place under oppressive conditions without any resources.

(Cornell Decl., Decl. 42 (Dkt. No. 327-1 at consec. p 31-32) at ¶¶ 83, 86 (footnotes and citations omitted)).

According to family dynamics expert Cornell, these local Ozark characteristics explain why Larry Webster was ill-prepared to adjust to his later military experience, why he would steadfastly avoid asking for help despite his circumstances and why he would feel isolated and alone even when among groups of people. (Id. at ¶ 99.)

iv. Petitioner's Quiet, Generous and Hard-Working Nature ²⁶

26 The witnesses who provided testimony regarding this portion of petitioner's background included: Delmer Barks, Larry Cole, Maggie Crutchfield, Wendell Crutchfield, Pat Hartmann, John Henry Helm, Hassie Johnson, Marvin Jones, Pauline Jones, David Libla, Leon Marler, Loyd Morgan, Geraldine Rogers, Dale Webster, James O. Webster, Darlene Wickham and Albert Williams.

Despite the onerous conditions of his childhood, witnesses have testified in these habeas proceedings that petitioner showed the strength and goodness of his character from an early age. As his Uncle Albert noted,

Larry had to work all of his life. Larry did anything that had to be done on the farm. After he'd get back from school, Larry would help out with feeding the animals, ploughing, and gardening . . . . When Larry was 8 or 9 years old, he began coming with us to pick cotton . . . . As soon as Larry was big enough to work, he did.

(Williams Decl., Decl. 12 (Dkt. No. 286-1 at consec. p. 116) at ¶ 22.) As a child, petitioner participated in trips during the "cotton vacations" from school where families would journey to the area southeast of Wayne County to pick cotton. (Id. at ¶¶ 24-25.) Picking cotton at this time was difficult, exhausting work, frequently in very cold conditions, for very little pay. (Id. at ¶ 19.)

Petitioner was protective of his siblings and he was viewed as quieter than most kids. His teacher Delmer Barks described Larry's general character at the time as follows: a "quiet, polite, laid back kid who was not going to do anything wrong or give you any trouble." (Barks Decl., Decl. 20 (Dkt. No. 288-1 at consec. p. 18) at ¶ 1.) Another teacher, Geraldine Rogers described petitioner in this way:

I remember Larry Webster as a good kid. Larry was a boy of average height with dark hair and dark eyes. He was a quiet boy and obedient in the classroom. Larry never gave me any trouble. Larry listened and was well-behaved.

(Rogers Decl., Decl. 39 (Dkt. No. 300-1 at consec. p. 2) at ¶ 2.) Children who grew up with petitioner remembered him as "a lot of fun to be around," "typical" and "easy-going." (Cole Decl., Decl. 26 (Dkt. No. 288-1 at consec. p. 57) at ¶ 8; Morgan Decl., Decl. 27 (Dkt. No. 288-1 at consec. p. 66) at ¶ 14; Jones Decl., Decl. 23 (Dkt. No. 288-1 at consec. p. 42) at ¶ 4.)

In 1965, when petitioner was 16 years old, his mother married Roy Crutchfield. (Crutchfield Decl., Decl. 1 (Dkt. No. 286-1 at consec. p. 14) at ¶ 73.) Mr. Crutchfield moved petitioner's mother, Maggie, and the three boys out of Missouri to western Michigan near the towns of Bangor and South Haven, where they lived in a worker house on a fruit farm. (Williams Decl., Decl. 12 (Dkt. No. 286-1 at consec. p. 117) at ¶ 28.) As in Missouri, petitioner earned money to help the family. He dropped out of school to pick fruit and then began working at a nearby metal factory. (Crutchfield Decl., Decl. 1 (Dkt. No. 286-1 at consec. p. 15) at ¶ 79.) One of the fruit farmers, Pat Hartmann, remembered Larry from that period as a "hard worker," "on the shy side," with a ready smile, who played with Hartmann's children. (Hartmann Decl., Decl. 24 (Dkt. No. 288-1 at consec. p. 48) at ¶ 2.) In Michigan, petitioner socialized with fellow teenagers Loyd Morgan, Larry Cole and Darlene Wickham. They described him as easy-going and somewhat shy and passive, friendly to everyone but more comfortable in a small group than in a crowd. (Wickham Decl., Decl. 25 (Dkt. No. 288-1 at consec. p. 53) at ¶ 10.) They also reported that petitioner then had a good sense of humor and liked to laugh, and was a generous, kind and good person. (Cole Decl., Decl. 26 (Dkt. No. 288-1 at consec. p. 57) at ¶ 8.)

v. Petitioner's Experiences in Vietnam ²⁷

27 In these habeas proceedings petitioner's counsel has presented the testimony of seven soldiers from petitioner's Army battalion (Freddie DeVera, Terry Bronson, Joe West, Allen Rozier, John McGeehan, Thomas Boling, and Joseph Clock), including his company commander and platoon leader, the officer who witnessed petitioner's unraveling after Vietnam (Larry Vaught), three childhood friends who also served in Vietnam (John Henry Helm, Wendell Crutchfield and Larry Cole), and a Vietnam War expert (Professor Eric Bergerud). These witnesses vividly related in their testimony the context of petitioner's military experience, the terrifying conditions that he faced and the bravery and sacrifice that he demonstrated during his service.

Petitioner served two tours of duty with the United States Army in Vietnam, during the height of the war, from July of 1968 until March of 1970, a period of more than 19 months. (Bergerud Decl., Decl. 43 (Dkt. No. 327-1 at consec. p. 51) at ¶ 7.) Most of that time he was in combat with the 2nd Battalion, 34th Armor of the 25th Infantry Division west and northwest of Saigon. (Id. at ¶ 9.) Among other awards, petitioner received a Bronze Star for Valor, the Vietnamese Cross of Gallantry, the Combat Infantryman Badge and the Army Commendation Medal. (Bergerud Decl., Decl. 43 (Dkt. No. 327-1 at consec. pp. 51-52) at ¶¶ 7-9.)

Petitioner enlisted in the United States Army with his friend Larry Cole in February of 1968. (Cole Decl., Decl. 26 (Dkt. No. 288-1 at consec. pp. 57-58) at ¶¶ 10, 11.) Petitioner was 19 years old at the time. Although they joined under a "buddy" system that supposedly allowed them to serve together, the two were immediately separated during basic training. (Id.)

After basic training, petitioner arrived in Vietnam in July of 1968, and was assigned to a combat infantry division. (Bergerud Decl., Decl. 43 (Dkt. No. 327-1 at consec. p. 51) at ¶ 7.) The 25th Infantry Division, often called "Tropic Lightning" and perceived to be one of the greatest combat units in the Army at the time, operated in a stronghold of the enemy and suffered extremely high casualty rates. (Id. at ¶ 10.) During the years 1968-1970, the 25th Division's area of operations was north and west of Saigon running up to the Cambodian border, described by petitioner's military expert in these habeas proceedings as "the doorstep of the most heavily fortified enemy stronghold in the Saigon area." (Id. at ¶¶ 17, 18.) The 25th Division fought against both the North Vietnamese Army and the Viet Cong. (Id.) In effect, petitioner served on the "spear-point" during "an exceptionally difficult and bloody period" in the Vietnam War. (Id. at ¶¶ 26, 7.)

Petitioner was assigned to the Headquarters Company of the 2nd Battalion, 34^th Armor, an "armored" battalion - nicknamed the "Dreadnaughts" - that utilized Armored Cavalry Assault Vehicles, a type of armored personnel carrier, commonly called "tracks." (Id. at ¶¶ 13, 14.) Captain Thomas Boling, who assumed command of Headquarters Company on July 4, 1969, explained that there were three platoons: mortar, tanks and scouts. The scout platoon, in which petitioner served, had approximately seventy soldiers and ten tracks. (Boling Decl., Decl. 31 (Dkt. No. 288-1 at consec. pp. 106-107) at ¶¶ 21-22.) The most common operation conducted by Headquarters Company was a "search and destroy" mission. (Id. at ¶ 28; Clock Decl., Decl. 29 (Dkt. No. 288-1 at consec. p. 84) at ¶ 25.) In carrying out such operations Captain Boling described that he routinely employed a so-called "hammer and anvil" technique which involved having soldiers going to a location, dismounting from the tracks and conducting a foot patrol over the terrain before linking up with the tracks. (Boling Decl., Decl. 31 (Dkt. No. 288-1 at consec. pp. 108-109) at ¶ 28.) Joseph Clock, a soldier in petitioner's Army battalion at the time, described his view of such missions:

[W]e drove our ACAVs into the jungle and sought out the enemy. We acted like bait, trying to draw the enemy out. In the Army's opinion, a successful search-and-destroy mission meant that we drew fire from the enemy, which made each mission especially stressful and dangerous . . . you had a shorter life expectancy than anyone else.

(Clock Decl., Decl. 29 (Dkt. No. 288-1 at consec. p. 84) at ¶ 25.) The danger and stress of such operations were heightened by the use of booby traps and mines by the enemy. Medic Freddie DeVera explained: "they made so many booby traps and land mines that you were always expecting something to happen . . . . Everywhere we went and everything we saw was a potential booby trap or land mine." (DeVera Decl., Decl. 33 (Dkt. No. 288-1 at consec. p. 123) at ¶ 15.) Similarly, Dr. Bergerud, petitioner's Vietnam War expert, has described the circumstances encountered by petitioner and others as follows:

[D]anger could come from any direction. Mines and booby traps were continuous plagues to every combat element of the Tropic
Lightning Division, killing and maiming many soldiers. A terrifying and lethal havoc would ensue when an American unit stumbled into an area filled with these nasty devices. Even apart from the men actually wounded or killed, the indirect effect of booby traps on infantry movement was serious. Such devices slowed troops down, forced them to traverse ugly terrain, and added immensely to the already heavy psychological strain of living in a war zone[.]

(Bergerud Decl., Decl. 43 (Dkt. No. 327-1 at consec. p. 60) at ¶ 32.) In addition to the booby traps and land mines, the Viet Cong would set up their own ambushes, the most frequently employed being a "close ambush" with a small force. Captain Boling testified that:

[t]hey would try to get in close to the route that you'd be moving over, and establish well dug in, well-concealed, well-prepared fighting positions. And they would wait until you got into what they refer to as a 'kill zone,' and then they would try to knock out the lead element and the trail element, and trapping you in the kill zone, and then try to kill you all.

(Boling Depo., lodged herein Mar. 2, 2007 (see Dkt. No. 308), at 38.) Such lightning exchanges could happen almost anywhere in the 25th Division's area of operations, and caused "terrible grief." (Bergerud Decl., Decl. 43 (Dkt. No. 327-1 at consec. p. 58) at ¶ 27.)

Nor was there any letup for Headquarters Company at night according to the testimony presented here. During 1969, the company usually operated out of "fire bases" rather than permanent camps. (Boling Decl., Decl. 31 (Dkt. No. 288-1 at consec. p. 108) at ¶ 25.) A fire base was a temporary encampment formed by placing the tracks or tanks in a circle and setting up a perimeter of dirt berms, chain link and concertina barbed wire. (Id. at ¶ 23.) Such a temporary encampment, however, provided little protection from ambush or artillery. (Id.)

In 1969, much of the Dreadnaughts' operations were comprised of carrying out sweeps and ambushes around Nui Ba Den. In this regard, Captain Boling testified that the area in which his troops operated during that period "was almost solid granite, and it had a lot of caves and fissures and places where . . . they could conceal themselves, and it gave them excellent fortification. And every time we ventured on Nui Ban Den, we got waxed . . . [.]" (Boling Depo., lodged herein Mar. 2, 2007 (see Dkt. No. 308), at 25.)

In addition to the stress that naturally accompanied this type of warfare and the horror of seeing fellow soldiers maimed and killed, petitioner and the rest of Headquarters Company frequently had to carry out body counts. (Boling Decl., Decl. 31 (Dkt. No. 288-1 at consec. p. 109) at ¶ 30.) Captain Boling remembered one particularly gruesome incident when they discovered a mass grave of decomposing North Vietnamese and had to "inventory" the bodies. (Id. at ¶ 31.)

In February 1969, petitioner was awarded the Combat Infantryman's Badge. (Cornell Decl., Decl. 42 (Dkt. No. 327-1 at consec. p. 31) at ¶ 81.) Petitioner was also awarded the Army Commendation Medal a few months later. (Id.) In late July of 1969, petitioner volunteered for even more hazardous duty with a combined reconnaissance and intelligence platoon ("CRIP") team. (Bergerud Decl., Decl. 43 (Dkt. No. 327-1 at consec. p. 61) at ¶ 34.) CRIP units would collect intelligence by day and go out at night to carry out dangerous and terrifying ambushes. (Boling Decl., Decl. 31 (Dkt. No. 288-1 at consec. p. 105) at ¶ 18.) Just prior to petitioner's joining, the CRIP unit was essentially wiped out by a bunker explosion which killed all but a handful of the unit's soldiers. (Boling Decl., Decl. 31 (Dkt. No. 288-1 at consec. p. 106) at ¶ 19; Clock Decl., Decl. 29 (Dkt. No. 288-1 at consec. p. 89) at ¶ 43.) In late August, the CRIP unit was decommissioned and petitioner was reassigned to the Headquarters Company scout platoon.

On November 25, 1969, Headquarters Company engaged in a particularly fierce battle near Nui Ba Den. (Clock Decl., Decl. 29 (Dkt. No. 288-1 at consec. p. 79) at ¶ 3.) During that battle Capt. Boling was called to assist an infantry unit that had been ambushed on the north side of the mountain where the enemy had "waited until the infantry got well into the depression and opened up on them, pinned them down, the entire company." (Boling Depo, lodged herein Mar. 2, 2007 (see Dkt. No. 308), at 30.) Because of the softness of the ground, tanks were useless. (Id.) Captain Boling sent four tracks from his scout platoon to extract the wounded and other survivors. (Id. at 30-31.) The tracks were under intense fire from North Vietnamese machine guns. (Id. at 32.) Joseph Clock was the sergeant in charge of the operation, and petitioner was one of 15 men under his command. Sgt. Clock described the combat of November 25, 1969:

[I]t was a living hell. The North Vietnamese were firing mortars and .51 caliber machine guns at us. Larry stood up and returned
enemy fire with an M-60 machine gun. He more or less went toward the North Vietnamese while everyone else was hugging the ground. Larry put down suppressing fire to protect the other men. Then he ran back and got more ammo under enemy fire.
The fight went on for about four hours and we faced a non-stop flurry of fire from the enemy . . . .

(Clock Decl., Decl. 29 (Dkt. No. 288-1 at consec. p. 79-80) at ¶¶ 6, 7.) In his deposition, Sgt. Clock testified regarding that battle: "I don't see how he escaped from getting killed . . . Larry saved lives that day. He saved lives. There's no doubt in my mind." (Clock Depo., lodged herein Mar. 2, 2007 (see Dkt. No. 308), at 30.) Petitioner was awarded the Bronze Star for Valor for his performance under fire at that battle. (Boling Decl., Decl. 31 (Dkt. No. 288-1 at consec. p. 111) at ¶ 39; Clock Decl., Decl. 29 (Dkt. No. 288-1 at consec. p. 80) at ¶ 10.)

A few weeks before this battle, Captain Boling had issued a reprimand to petitioner. (Boling Decl., Decl. 31 (Dkt. No. 288-1 at consec. pp. 111-112) at ¶ 40.) Petitioner had gone into Saigon, missed his transportation back, been arrested by MP's, slipped away from the MP's and hiked back to his unit. (Boling Depo., lodged herein Mar. 2, 2007 (see Dkt. No. 308), at 33.) As a result, he was charged with being AWOL for ten days and Captain Boling issued him an Article 15 citation. (Id. at 33-34.) However, Captain Boling did not regard this infraction as serious. "I recall thinking that I had to issue some form of reprimand . . . . The Bronze Star incident, which occurred only days later in November 1969, confirmed my belief that Larry was a valuable and courageous soldier." (Boling Decl., Decl. 31 (Dkt. No. 288-1 at consec. pp. 111-112) at ¶ 40.)²⁸

28 To Captain Boling, petitioner's character as a soldier was demonstrated by another memorable episode that took place after the battle at Nui Ba Den:

I was checking the perimeter of the fire base, and as I passed his position, he invited me to look at the battle scars on his ACAV. . . and he was upbeat and positive and enthusiastic . . . . When a high-projectile machine-gun type bullet strikes a piece of armor, it leaves a scar. It leaves a gouge, it leaves a scratch. And he had a number of these on the front and up around the driver's and the [track] commander's positions on his vehicle. And they were new . . . shiny, obviously recent battle scars, we call them.
Q: And he wanted to show those to you?
A: Yes.
Q: And he was proud of those?
A: Yes.

(Boling Depo., lodged herein Mar. 2, 2007 (see Dkt. No. 308), at 57, 59-60.)

Petitioner continued to serve in the United States Army with distinction in Vietnam until March 15, 1970. (Cornell Decl., Decl. 42 (Dkt. No. 327-1 at consec. p. 31) at ¶ 81.)

vi. Petitioner's Addiction to Alcohol and Drugs ²⁹

29 The witnesses who provided testimony regarding this aspect of petitioner's background included: Thomas Boling, Terry Bronson, Joseph Clock, Larry Cole, Maggie Crutchfield, Freddie DeVera, John Henry Helm, Lavern Marler, Loyd Morgan, Larry Vaught, Dale Webster and Darlene Wickham.

While in Vietnam petitioner was initiated into drug use. By all accounts, marijuana, "uppers," "downers" and heroin were commonly available to and used by many American soldiers in Vietnam. (Devera Decl., Decl. 33 (Dkt. No. 288-1 at consec. pp. 126-127) at ¶¶ 25-26; Bronson Decl., Decl. 32 (Dkt. No. 288-1 at consec. pp. 116-117) at ¶ 4.) Even apart from the pressures of combat, petitioner's youth, family history of alcoholism and lack of sophistication made him especially susceptible to addiction and dependence. (Cornell Decl., Decl. 42 (Dkt. No. 327-1 at consec. p. 40) at ¶ 106.)

Witnesses such as petitioner's cousin Lavern Marler and his neighbor John Henry Helm testified that drugs such as marijuana were unheard of in the rural Ozark region where petitioner was raised. (Marler Decl., Decl. 13 (Dkt. No. 286-1 at consec. p. 124) at ¶ 18; Helm Decl., Decl. 19 (Dkt. No. 288-1 at consec. pp. 10-11) at ¶ 27.) Nor were drugs prevalent among the teenagers in western Michigan when petitioner lived on the fruit farm. (Cole Decl., Decl. 26 (Dkt. No. 288-1 at consec. p. 57) at ¶ 7.) Petitioner's only real exposure to intoxicants before Vietnam was the weekend beer he drank in Michigan with his buddies. (Wickham Decl., Decl. 25 (Dkt. No. 288-1 at consec. p. 53) at ¶ 8.)

Petitioner's family suffered from a history of alcoholism, especially on his father's side. According to expert opinion introduced in these proceedings, petitioner's family history suggests that he was born with a genetic predisposition to alcoholism and drug addiction. (Stewart Decl., Decl. 44 (Dkt. No. 327-1 at consec. p. 77) at ¶ 20.) In Vietnam, especially at the base camps, drugs were prevalent. At the central base of the 25th Division, Cu Chi, drug use has been described as rampant, especially towards the later stages of the Vietnam War. (Bronson Decl., Decl. 32 (Dkt. No. 288-1 at consec. pp. 116-117) at ¶ 4.) While use of marijuana or other drugs that cloud a soldier's reactions was generally discouraged in the field, excessive use of both drugs and alcohol to deaden the emotions and relieve stress at base camps was commonplace. (Devera Decl., Decl. 33 (Dkt. No. 288-1 at consec. p. 126) at ¶ 26.) Petitioner's fellow soldier reported: "At Cu Chi, there was marijuana, heroin, methedrine in glass ampules . . . , morphine in kits to be given to the wounded. The marijuana and heroin were supplied by villagers." (Bronson Decl., Decl. 32 (Dkt. No. 288-1 at consec. p. 116) at ¶ 4.) One of petitioner's fellow soldiers has described the setting:

It seemed almost everywhere we went, Vietnamese villagers came up to us offering beer, drugs, or women . . . . Some guys, like myself, took every opportunity to mellow out, so you had a lot of marijuana smoking and taking of downers . . . . A lot of soldiers got hooked on drugs while they were in Vietnam. Everything was so available and cheap that it was hard to avoid it. More importantly, drugs were probably the best way of coping for some guys . . . . Staying drunk or high was usually the easiest way for guys to get through it all.

(DeVera Decl., Decl. 33 (Dkt. No. 288-1 at consec. pp. 126-127) at ¶¶ 25, 26.) As another childhood friend of petitioner's who served as a soldier in Vietnam stated: "Drugs were all over the place. . . . For many soldiers in Vietnam, drinking and taking drugs were a way to get through the experience." (Helm Decl., Decl. 19 (Dkt. No. 288-1 at consec. p. 10) at ¶ 27.)

Petitioner fell to this temptation. Petitioner's expert witness Dr. Stewart explained:

Given Mr. Webster's social history, his reported discomfort of being around large groups of people, and the overwhelming stress of his Vietnam service, the temptation to use the alcohol and drugs to calm himself and aid in facilitating interaction with his peers made it highly unlikely, if not impossible, for him to resist. As he experienced combat, the use of drugs and alcohol helped him cope with the trauma and fear he saw daily.

(Stewart Decl., Decl. 44 (Dkt. No. 327-1 at consec. p. 78) at ¶ 23.) While petitioner did not use drugs or alcohol while on patrol, he began drinking beer and using marijuana, opium and speed during his first tour of duty while in base camp and started using heroin during his second tour. (Id. at ¶¶ 24, 25.) By the time petitioner returned state-side to Fort Carson, near Colorado Springs, Colorado, in 1970, he was a habitual drug user. (Id. at ¶ 28.) Captain Larry Vaught testified that the community surrounding Fort Carson had a very relaxed attitude toward marijuana and that the marijuana use among soldiers returning from Vietnam was particularly widespread. (Vaught Decl., Decl. 34 (Dkt. No. 288-1 at consec. p. 135) at ¶ 11.)

After an incident involving marijuana, petitioner was given a general discharge, under honorable conditions, and released from the United States Army on November 4, 1970. (Id. at ¶ 16.) Family and friends testified that petitioner returned to this country from Vietnam dependent on drugs and alcohol. In this regard, his friend Loyd Morgan described petitioner as essentially being drunk every time Loyd saw him: "he couldn't stay out of the bottle. He was in the bottle continuously." (Morgan Depo., lodged herein Feb. 6, 2007 (see Dkt. No. 306), at 54.) Multiple family witnesses described petitioner as losing his struggles with drugs and alcohol. (Linda Webster Decl., Decl. 2 (Dkt. No. 286-1 at consec. p. 29) at ¶ 40; Crutchfield Decl., Decl. 1 (Dkt. No. 286-1 at consec. pp. 16-17) at ¶¶ 90-94.) According to expert opinion introduced in these proceedings, in the years following his return from Vietnam, petitioner became "a chronic user of alcohol and drugs unable to control his use," descending into "pathological use" and suffering "serious adverse consequences." (Stewart Decl., Decl. 44 (Dkt. No. 327-1 at consec. p. 80) at ¶ 29.) Within a few years of his return from Vietnam, petitioner had been rendered homeless and destitute, alcoholic and addicted.

vii. Difficulty Adjusting after Vietnam ³⁰

30 The witnesses who provided testimony addressing this period of petitioner's background included: Thomas Boling, Terry Bronson, Joseph Clock, Marilyn Cornell, Maggie Crutchfield, Freddie DeVera, John Henry Helm, Patricia Libla, David Libla, John McGeehan, Loyd Morgan, Dale Webster and Joe West.

After his honorable discharge from the Army in late 1970, petitioner was dependent upon alcohol and drugs. In short, he attempted to reintegrate into society, but ultimately was overcome by his problems and inability to cope. Petitioner's counsel in these habeas proceedings has presented a variety of witnesses who were available at the time of petitioner's trial and who have now described how fundamentally changed petitioner was upon his return from war and how he was unable to resume anything approximating a normal life thereafter. The court recounts this evidence below.

Petitioner returned to western Michigan in late 1970 and stayed for a short time with his mother and stepfather in the South Haven area. (Crutchfield Decl., Decl. 1 (Dkt. No. 286-1 at consec. p. 16) at ¶ 89.) His mother was disturbed by the change in petitioner's behavior ("he was a million miles away") and drug use, noting that he was "ashamed." (Id. at ¶ 92.) In fact, his mother described one day finding him simply "crying uncontrollably." (Id. at ¶ 94.) Petitioner's uncle Albert Williams, who had moved to Michigan in 1970, described that following his return to the area petitioner was anxious and nervous all the time. (Williams Decl., Decl. 12 (Dkt. No. 286-1 at consec. p. 117) at ¶ 31.) Darlene Wickham, who had been petitioner's girlfriend before he left for Vietnam, saw him on the streets of South Haven one day. She described him as completely changed, "absolutely detached." (Wickham Decl., Decl. 25 (Dkt. No. 288-1 at consec. p. 54) at ¶ 13.) She explained, "it was as if Larry was in the car with someone he didn't even know." (Id.) Petitioner's brother, Dale Webster, witnessed petitioner's heightened startle response and strange behavior. (Dale Webster Decl., Decl. 4 (Dkt. No. 286-1 at consec. p. 54) at ¶ 27.) Loyd Morgan, who had been one of petitioner's closest friends, had married and was living in a house in South Haven when petitioner returned. (Morgan Decl., Decl. 27 (Dkt. No. 288-1 at consec. p. 67) at ¶ 18.) Loyd described that petitioner, carrying all his possessions in a brown bag, would stay with Loyd periodically, sleeping on the couch. (Id.) Loyd stated that petitioner had terrible nightmares, screaming out in his sleep, sweating and was so terrified that Loyd would have to comfort him in the middle of the night. (Id. at ¶ 20.) In his testimony in these proceedings Loyd described one night when he and petitioner went camping and petitioner fell apart:

It was after midnight. And Larry started in on one of his screaming spells. He had been drinking . . . he just kept screaming. And finally he just took off out of the tent and went running into the woods . . . . [I] caught him out in the woods and he was beating on a tree, and his hands were raw, because he had been beating the tree so hard . . . he was just so upset . . . . We sat down there beside that tree. And we talked for over an hour . . . . [I told him] Vietnam is behind you. You don't have to go back there, you know. Those kinds of things . . . he was very hard to calm down.

(Morgan Depo., lodged herein on Feb. 6, 2007 (see Dkt. No. 306), at 58-59.)

Despite these problems and issues, petitioner apparently made attempts to reintegrate himself into society after his military service. He found work at a factory for a while. (Morgan Decl., Decl. 27 (Dkt. No. 288-1 at consec. p. 71) at ¶ 30.) Petitioner married a woman he hardly knew with whom he had a child before she left him, took the baby and moved to Arkansas. (Dale Webster Decl., Decl. 4 (Dkt. No 286-1 at consec. p. 54) at ¶ 29.)

Petitioner later left Michigan and began to wander. In 1971, he stayed for a time with his sister Patricia and her husband David Libla in Missouri. His sister Patricia reported: "It was wonderful to see him but he looked like a stranger. He had gone into his own little self . . . he was drinking a lot." (Patricia Libla Decl., Decl. 3 (Dkt. No. 286-1 at consec. p. 45) at ¶ 43.) His brother-in-law David Libla gave petitioner a job, but they soon quarreled over the way Libla was treating petitioner's sister, and Libla told petitioner he was no longer welcome there. (Id. at ¶ 46.)

In 1972, petitioner stayed with his sister Linda and her husband Carroll Moss. In her declaration Linda described this period in her brother's life:

He was not the same person . . . he was no longer calm, but restless and on the move. His eyes - they'd be glassy looking. Even though he'd carry on a conversation with you, it was like he was somewhere else. He'd look at you like he didn't see you.

(Linda Webster Decl., Decl. 2 (Dkt. No. 286-1 at consec. p. 29) at ¶ 41.) Petitioner continued having nightmares. (Id.) He later left his sister Linda's house in September of 1972 without even telling her where he was going. (Id.)

Marilyn Cornell, a marriage and family therapist and one of petitioner's experts in these proceedings, has explained:

It is not surprising that Larry Webster would fail to adjust when he re-entered civilian life after his military service. In his family, the pattern was clear and deep-set: one did not ask for help. Men did not readily identify or deal with psychological symptoms such as anxiety or depression. Men in the Webster family went to war and typically returned scarred and traumatized. There simply was no successful readjustment. Instead, there was depression, anxiety, addiction and rootlessness[.]
Larry had little, if any, insight into the problems he faced. He adapted as he did as a child by avoiding others, accepting problems and self medicating with alcohol and drugs. He did not grasp the nature and extent of his problems and was extremely reluctant to seek help for stress, addiction, or increasing anxiety. The trauma of combat was heaped upon the earlier traumatic experiences of childhood. He had never received any treatment for his abusive childhood and had no skills with which to deal with this compound trauma. He was particularly vulnerable to, and at risk for suffering from, the psychological impact of his combat experience.

(Cornell Decl., Decl. 42 (Dkt. No. 327-1 at consec. pp. 39-40) at ¶¶ 103, 106.)

The various Vietnam veterans who testified in these habeas proceedings, particularly those who served beside petitioner in his battalion, have also explained their own comparable post-Vietnam struggles with depression, anxiety, alienation, alcohol abuse and psychological problems. (Clock Decl., Decl. 29 (Dkt. No. 288-1 at consec. p. 92) at ¶ 50; McGeehan Decl., Decl. 30 (Dkt. No. 288-1 at consec. p. 101) at ¶¶ 20-22; West Decl., Decl. 35 (Dkt. No. 288-1 at consec. p. 141) at ¶ 20; Boling Decl., Decl. 31 (Dkt. No. 288-1 at consec. p. 113) at ¶¶ 45-47.)

viii. Conclusion Regarding Prejudice

The foregoing discussion of the substantial evidence presented in these habeas proceedings makes clear that the jury that sat in judgment at the penalty phase of petitioner's trial was obviously presented with neither a full nor an accurate picture of petitioner's childhood, background, character and war record. Instead, the jury heard only an abrupt and halting penalty phase defense presentation that was truly paltry. It was grossly insufficient and ineffective.

As the Supreme Court has concluded under similar circumstances "had the jury been confronted with this considerable mitigating evidence, there is a reasonable probability that it would have returned with a different sentence." Wiggins, 539 U.S. at 536. ("This evidence adds up to a mitigation case that bears no relation to the few naked pleas for mercy actually put before the jury, and although we suppose it is possible that a jury could have heard it all and still have decided on the death penalty, that is not the test." Rompilla, 545 U.S. at 393). See also Hamilton, 583 F.3d at 1134 ("Given the compelling evidence of Hamilton's 'excruciating life history' that could have been placed 'on the mitigating side of the scale,' [citation omitted], we conclude that ' there is a reasonable probability that at least one juror would have struck a different balance between life and death.'"). The mitigating evidence presented by petitioner's counsel in this habeas proceeding is substantial, powerful and persuasive and establishes the unreliability of the penalty verdict.

The mitigating evidence regarding petitioner's "troubled history," including the deprivation, hardship, poverty, alcoholism and violence that characterized his early years, is precisely the type of evidence that has been found vital to the assessment of a capital defendant's "moral culpability." Stankewitz v. Wong, 698 F.3d at 1175 (quoting Wiggins, 539 U.S. at 535). "Evidence regarding social background and mental health is significant, as there is a 'belief, long held by society that defendants who commit criminal acts that are attributable to a disadvantaged background or to emotional or mental problems, may be less culpable than defendants who have no such excuse.'" Douglas v. Woodford, 316 F.3d 1079, 1088, 1090 (9th Cir. 2003) (quoting Boyde v. California, 494 U.S. 370, 382 (1990)). See also Libberton v. Ryan, 583 F.3d 1147, 1172-73 (9th Cir. 2009). A history of "abuse and privation" is important mitigation evidence, extremely relevant to a "jury's appraisal" of a defendant's "moral culpability" and in turn the appropriate punishment. Williams, 529 U.S. at 398. This is true whether or not the evidence concerns the actual crime or is related to the issue of the defendant's future dangerousness. Id.

Respondent maintains that the characterization of petitioner's childhood as "impoverished and destitute" is incorrect because there is evidence that his life improved when petitioner's mother left his father and brought the family to her home in Missouri. There, respondent asserts petitioner's life was relatively normal with a "close loving family." While it appears to be fair to characterize petitioner's situation as having improved in 1953 when his mother took the five children and returned to the Fawbush Holler, the evidence presented in this habeas proceeding establishes that petitioner's family still remained impoverished and was barely able to scrape by even during this time. Indeed, as alluded to above, neighbors described the houses petitioner's family lived in during this time as "terrible" and to their situation as "pitiful."³¹ Nonetheless, the evidence paints a picture of petitioner's mother, Maggie Webster, persevering under onerous circumstances, raising five children without a husband, in a shack on government land without electricity, plumbing, medical or dental care, a consistent food supply or consistent employment. Respondent's attempt to dismiss the evidence as depicting instead a somewhat idyllic "close loving family" rather than compelling mitigating circumstances is both unduly simplistic and unsupported.

31 In particular, Lucinda Reutzel, a friend and schoolmate, stayed at the shack in the holler only once, attesting: "I remember thinking when we got there that this can't be where they live. It was just a shack. Instead of having a foundation, the floor was up on rocks . . . . It was dark and dreary in there. I don't remember what they had for supper, but it wasn't much." (Reutzel Decl., Decl. 40 (Dkt. No. 300-1 at consec. p. 8) at ¶ 3.) Both of the witnesses who taught petitioner, Geraldine Rogers and Delmer Barks, as well as other witnesses, noted that the Websters were the poorest family in the area during this time. (Rogers Decl., Decl. 39 (Dkt. No. 300-1 at consec. p. 2) at ¶ 4; Barks Decl., Decl. 20 (Dkt. No. 288-1 at consec. p. 24) at ¶ 30.) A neighbor described the family as "poorer than poor." (David Libla Decl., Decl. 21 (Dkt. No. 288-1 at consec. p. 28) at ¶ 4.) Patsy Helm Dillon stated: "It breaks my heart to think of how the Websters lived." (Dillon Decl., Decl. 18 (Dkt. No. 287-1 at consec. p. 2) at ¶ 8.)

Witnesses in these proceedings have described petitioner's mother as "overly protective," "defensive," "detached" and "not really a homemaker." (Dillon Decl., Decl. 18 (Dkt. No. 287-1 at consec. p. 3) at ¶ 6.) Petitioner's expert witness noted: "Maggie Webster could do little to nurture her children or help them grow into fulfilled adults; her main task was sheer survival." (Cornell Decl., Decl. 42 (Dkt. No. 327-1 at consec. p. 35) at ¶ 90.) Similarly, petitioner's brother-in-law David Libla stated: "Maggie never showed much emotion or care for anybody, especially her children. Even though Maggie raised her children all by herself, there always seemed to be a lack of an emotional bond between them." (David Libla Decl., Decl. 21 (Dkt. No. 288-1 at consec. p. 30) at ¶ 10.) Like all childhoods, petitioner's included both joy and sadness, but the evidence presented here persuasively establishes that petitioner's family suffered enormous hardships and that all of the children were damaged to some extent as a result.

At bottom, respondent's argument boils down to a simple truism: petitioner's childhood could have been worse. Respondent fails to acknowledge, however, that the strength of this evidence, and its value as mitigation, rests not merely on its sympathetic aspects but on its narrative heft: it explains petitioner's life and would have given the jury an understanding of and an insight into his character - an understanding they utterly lacked in the virtual absence of a defense penalty phase presentation. Like the cultural evidence, the evidence that petitioner was raised in a small crude shack in a remote and isolated area by a fiercely independent but emotionally distant mother helps explain why he was totally unprepared emotionally and psychologically for what happened to him while serving his country in Vietnam. Attempting to minimize the extensive amount of evidence presented by petitioner, respondent glosses over many of the compelling mitigating aspects of the evidence unearthed in these habeas proceedings regarding the early years of petitioner and his family dynamic: the evidence of a pre-disposition toward alcoholism, the family tradition of serving our country in wartime (see Webster Smith Depo., lodged herein Dec. 19, 2006 (see Dkt. No. 296), at 10-11, 16.), the mental illness and dysfunction in the family tree. It is difficult not to conclude that the reason respondent glosses over such evidence is that, in light of the case law on what usually qualifies as required mitigation evidence, he has no real response to these aspects of the mitigation case that could have and should have been presented on petitioner's behalf at the penalty phase of his trial.

Respondent also appears to be of the view that the evidence indicating petitioner was a normal, shy, good boy who had friends and interacted relatively well with his peers and community at school and church simply does not qualify as potential penalty phase mitigating evidence at all. The court does not agree. To the contrary, the undersigned finds that this evidence showing that petitioner was dutiful, helpful and reasonably assimilated despite the hardships he and his family endured easily constitutes evidence that could have aided in persuading a jury to spare his life. Such evidence is not only of significant independent mitigating value, it also fairly depicts the devastating changes petitioner underwent during and after he fought in the Vietnam War, including his descent into alcohol and drug dependence, which in and of itself was compelling mitigating evidence. Numerous friends, family members and experts testified to the dramatic and crushing effect of petitioner's war experiences -evidence that only increases in probity if contrasted to petitioner's character before the war. The absence of such evidence from the penalty phase presentation by petitioner's counsel, especially in combination with the failure to present the other mitigating evidence, undercuts the reliability of the jury's death verdict in this case. A reasonable jury exposed to the compelling evidence that was not presented in the penalty phase at petitioner's trial could well have been convinced that petitioner was, despite his crime, a human being of some worth who should not be sentenced to death.

In addition to the evidence of petitioner's family history and childhood, the evidence of petitioner's Vietnam experiences would have been substantially mitigating in showing his character and as an explanation for his difficulties after the war. The extensive evidence presented in these habeas proceedings, of ten Vietnam veterans, one expert on the Vietnam War and a variety of documentary and photographic exhibits, is undeniably and self-evidently powerful. Respondent's characterization of that evidence as merely "redundant" and "cumulative" of the evidence introduced at trial is completely unpersuasive. To suggest, as respondent does, that a brief summary description of one battle on petitioner's commendation, read into the record by counsel at the penalty phase of petitioner's trial, is the equivalent of the detailed description of petitioner's complete Vietnam War experience through the eyes of those fellow soldiers who were present in Vietnam with him, is quite frankly absurd. The extensive mitigating evidence presented in these habeas proceedings goes far beyond one day of the battle on Nui Ba Den and instead shows in a compelling manner the seminal events that stretched over nineteen months, through petitioner's two tours of duty: the day-to-day conditions of anxiety, exhaustion and terror, the psychological toll inflicted by those circumstances, the presence of drugs and other aspects of his Vietnam War service. This previously un-presented evidence concerned far more than petitioner's heroism in a single battle. The witnesses who testified in these habeas proceedings regarding Vietnam were neither redundant nor cumulative. Cf., People v. Goad, 938 S.W.2d 363, 371 (Tenn. 1996) (reversing the petitioner's death sentence where trial counsel had merely presented at the penalty phase of trial testimony from family members who noted that the petitioner had "returned from Vietnam with an addiction to drugs and a changed personality," but failed to present any soldier or expert testimony regarding the petitioner's Vietnam service, leaving open "the question of exactly what transpired in Vietnam and how the events affected Goad").³²

32 Instead, the jury heard precious little about petitioner's background during the penalty phase of the trial. As reflected in the twenty-two pages of the trial transcript comprising the entire defense mitigation case, petitioner's two sisters mentioned the poverty of their childhood, the cruelty of their father and how petitioner changed after Vietnam. (RT at 5423, 5428-5429, 5432.) Without any context or supporting testimony, defense counsel merely introduce into evidence certificates relating to petitioner's receipts of the Bronze Star and Army Commendation Medal. (RT at 54205421.) This meager and incomplete presentation was clearly inadequate to allow the jury to understand and assess the appropriate sentence to be imposed in petitioner's case. This is especially true in light of the significant and substantial mitigating evidence that was readily available had adequate investigation and preparation been undertaken in a timely manner by petitioner's counsel and which has been described above.

Respondent also argues that the testimony of some of these witnesses regarding the Vietnam War and petitioner's experiences would have been excluded from admission at his trial, if offered, as irrelevant. However, the general test for relevancy in California is whether the evidence tends logically and by reasonable inference to prove or disprove any disputed fact that is of consequence to the determination of the action. Cal. Evid. Code § 210. In the capital case context, the California Supreme Court has stated:

In People v. Easley (1983) 34 Cal.3d 858, 196 Cal. Rptr. 309, 671 P.2d 813, we said the jury should consider any " 'aspect of [the] defendant's character or record . . . that the defendant proffers as a basis for a sentence less than death.' " (P. 878, fn. 10, 196 Cal. Rptr. 309, 671 P.2d 813, quoting Lockett v. Ohio (1978) 438 U.S. 586, 604, 98 S. Ct. 2954, 2964, 57 L.Ed.2d 973.) Later cases confirm that a defendant is entitled to introduce evidence of any aspect of his character or record he offers as a basis for mitigation.

People v. Daniels, 52 Cal. 3d 815, 877 (1991). See also People v. Hajek, 58 Cal.4th 1144, ___, 2014 WL 1759579, at *69 (May 5, 2014) (observing that the standard instruction in a capital case directs the jury "that it may consider in mitigation 'any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime and any sympathetic or other aspect of the defendant's character or record that the defendant offers as a basis for a sentence less than death, whether or not related to the offense for which he is on trial,' [and] adequately conveys the full range of mitigating evidence that may be considered by the jury.") (quoting People v. Catlin, 26 Cal. 4th 81, 173-74 (2001)). Here, there was no better way of establishing the facts surrounding petitioner's Vietnam experience and how it shaped his character than through testimony of observations by the soldiers who served there with him.

Moreover, with regard to the penalty phase of a capital case trial, the admission of mitigating evidence is of constitutional dimension. See Skipper v. South Carolina, 476 U.S. 1, 4-8 (1986) (holding that proffered testimony regarding the defendant's good conduct in jail while awaiting trial was erroneously excluded from the penalty phase trial and noting that there was no disputing that the Supreme Court has required "that in capital cases that 'the sentencer . . . not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.'") (quoting Lockett v. Ohio, 438 U.S. 586, 604 (1978) and Eddings v. Oklahoma, 455 U.S. 104, 110 (1982)). See also People v. Edwards, 57 Cal. 4th 658, 759 (2013) ("The Eighth and Fourteenth Amendments require that the sentencer in a capital case not be precluded from considering any relevant mitigating evidence, that is, evidence regarding 'any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.'") (quoting People v. Frye, 18 Cal.4th 894, 1015 (1998)).

As the Ninth Circuit has stated in response to an argument similar to respondent's here:

The district court clearly erred in relying on the State's argument that the mitigating evidence could not have made a difference in the outcome of the penalty phase because the crime Hamilton committed was not "attributable to" his disadvantaged background or mental health problems. As a matter of law, the trial court could not have excluded the mitigating evidence on this ground. Doing so would have directly violated the Supreme Court's longstanding instruction that "a State cannot preclude the sentencer from considering any relevant mitigating evidence that the defendant proffers in support of a sentence less than death," as "virtually no limits are placed on the relevant mitigating evidence a capital defendant may introduce concerning his own circumstances." Payne v. Tennessee, 501 U.S. 808, 822, 111 S. Ct. 2597, 115 L.Ed.2d 720 (1991) (internal quotation marks omitted); see Tennard v. Dretke, 542 U.S. 274, 285-88, 124 S. Ct. 2562, 159 L.Ed.2d 384 (2004) (holding that evidence of impaired mental functioning is inherently mitigating, and that a defendant need not demonstrate a "nexus" between his mental capacity and the crime committed).

Hamilton, 583 F.3d at 1132.

Also instructive in this regard is the case of People v. Lucero, 44 Cal.3d 1006 (1988) in which the California Supreme Court affirmed the judgment as to guilt but reversed and remanded for a new penalty phase because the trial court erroneously excluded, among other pieces of mitigating evidence, a defense expert's opinion that the defendant might be suffering from posttraumatic stress syndrome as a result of his service in Vietnam. In so holding the court concluded:

[T]he exclusion of mitigating evidence in the case before us would require reversal of the penalty verdict. This case is one in which the jury might have found the death penalty inappropriate. Defendant offered a substantial showing in mitigation: the absence of any prior acts of criminal violence, the absence of any prior felony convictions, a deprived and harrowing childhood, a traumatic military experience, and a serious mental illness.

44 Cal. 3d at 1032. See also People v. Smith, 35 Cal. 4th 334, 367 (2005) ("Here the relevance of Janice Foster's testimony to defendant's character and personality is clear, because Foster's opinion was based on her familiarity with defendant's emotional and social immaturity, a recognized mitigating consideration.") Here, there can be little question that the testimony of petitioner's fellow soldiers would have been properly admitted as relevant mitigating evidence at the penalty phase of his trial had his counsel offered that testimony.³³

33 All of that evidence was available to petitioner's counsel and is properly considered by this federal habeas court. See Lang v. Cullen, 725 F. Supp. 2d 925, 945 (C.D. Cal. 2010) ("[P]etitioner's life history and background testimony will be admissible in the second phase of bifurcated proceedings concerning penalty phase ineffective assistance, since the testimony is unquestionably relevant in assessing whether trial counsel's failure to investigate and present mitigation evidence prejudiced petitioner.")

As for the admissibility of the testimony of the Vietnam War expert presented in this habeas proceeding, California Evidence Code § 720, in effect at the time of petitioner's trial, stated that a person is "qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject." Professor Bergerud certainly has special knowledge sufficient to qualify under this definition. Moreover, his description of the Vietnam conflict, the structure of the combat units and the conditions of combat are insightful and helpful. Finally, the Ninth Circuit has recognized that the presentation of expert testimony to a sentencing jury in a capital case is a crucial aspect of the proper and effective mitigation presentation. Hamilton, 583 F.3d at 1132 ("Counsel's failure to retain an expert to explain the mitigating value of Hamilton's traumatic childhood was all the more prejudicial because obtaining the evidence and calling an expert to explain its relationship to Hamilton's murder of his wife -- as opposed to a random act of violence aimed at society in general -- could very well have altered the outcome."); Douglas, 316 F.3d at 1090 ("Although we did not find that [counsel's] failure to discover Dr. Broussard impacted the outcome of the guilt phase, the same cannot be said of the penalty phase. Even if the testimony were not enough to negate an element of underlying offense, it could have invoked sympathy from at least one member of the jury at the penalty phase, particularly when considered in connection with additional sociological history evidence discussed above."); Jackson v. Calderon, 211 F.3d 1148, 1163 (9th Cir. 2000) (finding ineffective assistance in connection with a penalty phase in part because "nothing was done and the penalty phase was left without any expert evidence at all concerning one of the most important factors in mitigation-Jackson's clearly impaired mental condition at the time of the crime.").

In his final argument attempting to diminish the power of the mitigating evidence related to petitioner's service during the Vietnam War, respondent asserts that the disclosure of "negative evidence of misconduct" -- petitioner's citation for briefly being AWOL in Vietnam and the difficulties he experienced at Fort Carson when he returned from the war -- "would have completely undermined" the value of any mitigating evidence with respect to petitioner's Vietnam service. Again, the undersigned simply cannot agree.

The AWOL citation petitioner received in early November of 1969 was not for a serious act of misconduct and was even characterized in these proceedings by petitioner's commanding officer as a minor infraction deserving, in his opinion, of only a "wrist slap." (Boling Decl., Decl. 31 (Dkt. No. 288-1 at consec. p. 111) at ¶ 40; Boling Depo., lodged herein Mar. 2, 2007 (see Dkt. No. 308), at 32-34, 49, 60-61.) This incident, coming only a few days before petitioner's exhibition of heroism at the battle on Nui Ba Den, which won him the Bronze Star, was inconsequential and exploration into it at the penalty phase would not have likely damaged petitioner in the jury's eyes particularly in light of the testimony regarding his Vietnam service as a whole. In any event, it would have been for the jury to weigh as part of petitioner's extensive military record - a part of his history about which they heard vanishingly little.

As for petitioner's problems encountered at Fort Carson, his inability to adjust to stateside military service, his addiction to drugs, and his discharge from the army thereafter are all part and parcel of the defense mitigation case that was never presented. The available evidence suggests that petitioner was unable to integrate back into regimented, peacetime military service. Adding to the problem, treatment services for soldiers suffering the psychological effects of combat were virtually non-existent in the early 1970's. (Cornell Depo., lodged herein Nov. 13, 2007 (see Dkt. No. 365), at 119-120.) Larry Vaught, the officer who signed petitioner's discharge papers, testified that many soldiers returning from Vietnam tours to wait out the last few months of their enlistment term had similar problems, stating:

A number of men returning from Vietnam did not perform as very good soldiers while at Fort Carson . . . . [I]t was very tough for many of the guys coming back from Vietnam . . . .

(Vaught Decl., Decl. 34 (Dkt. No. 288-1 at consec. p. 135) at ¶ 10.) Captain Vaught also testified that, unfortunately, many soldiers coming home from combat in Vietnam to Fort Carson encountered difficulties because they were not given a new assignment and instead were simply left to wait out a few months to discharge in an environment where bad advice and drug use were rampant. (Vaught Depo., lodged herein Mar. 2, 2007 (see Dkt. No. 308), at 12-13, 15-17.) Therefore, the undersigned is persuaded that evidence of petitioner's discharge from the United States Army, does not detract from the potential case in mitigation, but more likely serves to aid in demonstrating the impact of petitioner's Vietnam experience and corrosive effects of his introduction, and eventual immersion, into the numbing effects of drug and alcohol abuse. Far from countering the mitigating evidence, the Fort Carson episode added to a complete, credible, and potentially mitigating portrait of petitioner's character and the events that shaped his life.

Indeed, the evidence of petitioner's experience in Vietnam was critically important to a full understanding of his drug and alcohol dependence which arose thereafter. Evidence of drug dependency and addiction can be compelling mitigation evidence. See, e.g., Correll, 539 F.3d at 952; Lambright, 490 F.3d at 1124 (ineffective assistance of counsel at the penalty phase found in part because "significant evidence related to Lambright's long-term drug addiction and its effect upon him was available but was not presented to or urged upon the sentencing court"); Frierson v. Woodford, 463 F.3d 982, 989 (9th Cir. 2006) ("We have held that a failure to investigate and present, at the penalty phase of a capital trial, evidence of organic brain damage or other mental impairments, drug abuse, and a dysfunctional family or social environment may constitute ineffective assistance of counsel."); Ainsworth v. Woodford, 268 F.3d 868, 875 (9th Cir. 2001) (finding the petitioner's regular and long term abuse of a variety of drugs was "information [that] would have been extremely important to the jury in its effort to decide whether to impose the death penalty").

Respondent argues nonetheless that such "evidence of habitual substance abuse is 'at best a two-edged sword'" and that the evidence concerning petitioner's alcohol and drug dependency and his genetic, familial predisposition to substance abuse consequently would have carried little mitigating weight. The flaw in respondent's argument on this point is that the potentially aggravating aspects of drug and alcohol use were already before petitioner's jury: numerous witnesses, including the prosecution's main witness, Bruce Smith, had testified during the guilt phase of petitioner's trial that the group of people camping by the American River was consuming drugs and alcohol and financing this consumption through thefts, robberies and drug sales. Penalty phase mitigation evidence explaining the circumstances by which petitioner became a habitual user of drugs could only have been mitigating under these circumstances where the other side of the sword had been wielded against him already.

Contrary to respondent's assertions, Dr. Stewart's testimony regarding chemical dependency and the factors in petitioner's background that made him particularly susceptible to that dependence would likely have been admissible in mitigation at the penalty phase of the trial. Dr. Stewart's testimony here included an explanation of the dynamics of substance use and abuse, brain chemistry and addiction, subjects well within his special expertise. Such testimony would have been admissible at the penalty phase of petitioner's trial. See Cal. Evid. Code §§ 801, 802.³⁴ Dr. Stewart's based his testimony regarding petitioner upon the additional foundation of his interview of petitioner, a review of petitioner's court records, military records and prison records, a review of a number of sworn declarations and transcripts of testimony provided under oath. Dr. Stewart's expert opinions were therefore amply supported and potentially persuasive and would have been properly admitted into evidence at the penalty phase of petitioner's trial. See Hamilton, 583 F.3d at 1132; Lucero, 44 Cal. 3d 1032.

34 California Evidence Code § 801 provides that an expert witness may give opinion testimony if the opinion is "[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact." Section 802 provides that "[a] witness testifying in the form of an opinion may state on direct examination the reasons for his opinion and the matter (including, in the case of an expert, his special knowledge, skill, experience, training, and education) upon which it is based, unless he is precluded by law from using such reasons or matter as a basis for his opinion."

ix. Case Law Supports the Find of Prejudice Here

Many prior decisions guide the court in assessing this record to determine whether petitioner was prejudiced by his counsel's ineffective assistance at the penalty phase of his trial. In Williams v. Taylor, one of the Supreme Court's seminal cases on this subject, trial counsel offered merely the testimony of the defendant's "mother, two neighbors and a taped excerpt from a statement by a psychiatrist." 529 U.S. at 369. The Court concluded that, in light of the available mitigating evidence involving the defendant's background and mental deficits, the jury was deprived of crucial sentencing information such that there was a reasonable probability the result of the sentencing proceeding would have been different had counsel "presented and explained the significance of all the available evidence." Id. at 399. See also Sears v. Upton, 561 U.S. 945, ___, 130 S. Ct. 3259, 3266 (2010) ("We certainly have never held that counsel's effort to present some mitigation evidence should foreclose an inquiry into whether a facially deficient mitigation investigation might have prejudiced the defendant.")

Similarly, the Ninth Circuit has found prejudice in cases where trial counsel presented mitigating social history evidence "in a cursory manner that was not particularly useful or compelling" after neglecting to investigate and develop a complete presentation of the available mitigating evidence. Douglas, 316 F.3d at 1090. See also Hamilton, 583 F.3d at 1131 ("Both the Supreme Court and we have found the failure to investigate and present similar -- and even less compelling -- evidence to be highly prejudicial.") (gathering cases finding prejudice); Karis, 283 F.3d at 1140-1141 ("With proper investigation, Karis' counsel could have put before the jury evidence contrary to the prosecution's piercing argument."); Silva, 279 F.3d at 847-48 (gathering cases finding prejudice flowing from ineffective assistance at the penalty phase). "While it is true that the testimony touched upon general areas of mitigation, counsel's cursory examination of the witnesses failed to adduce any substantive evidence in mitigation." Ainsworth, 268 F.3d at 874. Indeed, presenting only "the bare facts" of the defendant's "troubled past . . . without further investigation and presentation of contextual evidence and argument . . . [may only] demonize" the defendant "rather than to mitigate the appropriateness of imposing the death penalty for his actions." Correll, 539 F.3d at 953 n. 8. Such was the case here.

Even if some references to petitioner's difficult childhood and abusive father were made in the cursory testimony presented at the penalty phase of his trial, there was absolutely no testimony at all presented by his counsel regarding petitioner's Vietnam service. Instead, his decorations and medals were submitted to the jury in an evidentiary vacuum. Nor was there any explanation provided to the jury regarding the effect of the Ozark culture on his makeup. Such evidence explains his fundamental vulnerability and his reluctance to seek help.³⁵ Nor was there any explanation provided to the jury about petitioner's drug and alcohol addiction. Significantly, no expert witnesses of any kind were called to testify in the defense mitigation case.

35 The Ninth Circuit has recognized that it is important, in the penalty phase of a capital case, to "present evidence necessary to bridge a cultural gap." Caro v. Calderon, 165 F.3d 1223, 1226 (9th Cir. 1999); Siripongs v. Calderon, 35 F.3d 1308, 1316 (9th Cir. 1994). The qualities characteristic of Ozark culture that petitioner learned as a child -- stoicism, distrust of authority, disinclination to ask for help, anxiety in large groups, wariness with strangers -- led in part to the difficulties he experienced as an adult, including his drug and alcohol dependency, his failure to readjust after combat, and his disinclination to seek help from others. This was important evidence that could have impacted the jury's assessment of petitioner's character.

In juxtaposition, the aggravation evidence presented at petitioner's trial was not strong. Petitioner's three prior felony convictions were relatively inconsequential and two of the three were submitted via stipulation. Petitioner's underlying capital crime was a brutal, planned murder. Nonetheless, as the Ninth Circuit has recognized:

Prejudice is especially likely where, as here, "this is not a case in which a death sentence was inevitable because of the enormity of the aggravating circumstances." Bean, 163 F.3d at 1081. In fact, in this case the State argued that only one aggravating factor existed. Although the offense in this case certainly was brutal and sadistic, the Supreme Court in Williams recently noted that "[m]itigating evidence unrelated to dangerousness may alter the jury's selection of penalty, even if it does not undermine or rebut the prosecution's death-eligibility case." Williams, 120 S. Ct. at 1516.

Lambright v. Stewart, 241 F.3d 1201, 1208 (9th Cir. 2001). See also Lambright v. Schriro, 490 F.3d at 1127 ("Indeed, we have held consistently that even in cases involving particularly heinous murders, a defendant can be prejudiced by an attorney's failure to investigate and present mitigating evidence."); Hovey, 458 F.3d at 930-31 (prejudice found even though the petitioner had been sentenced to death for the brutal kidnapping and murder of an eight year-old girl and the jury that imposed the death penalty heard evidence in aggravation including petitioner's prior conviction for kidnapping another young girl); Summerlin, 427 F.3d at 640-42; Stankewitz v. Woodford, 365 F.3d at 723-725 ("Although the prosecution presented a strong case, we conclude that there was a reasonable probability that the jury would not have sentenced Stankewitz to death had it been presented with the evidence of the numerous deprivations and abuses Stankewitz alleges that he suffered for most of the 19 years he lived prior to the killing."); Douglas, 316 F.3d at 1091 (finding that "[t]he gruesome nature of the killing did not necessarily mean that the death penalty was unavoidable"); Hendricks, 70 F.3d at 1044 (concluding that "despite . . . substantial evidence of aggravation, . . . the failure . . . to present mitigating evidence rendered the sentencing hearing neither fair nor reliable")

In assessing the likelihood of whether a proper penalty phase presentation would have rendered a different result, the court must assess petitioner's crime and his responsibility in the context of the evidence adduced in the guilt phase. Petitioner's co-defendant Madrigal had also stabbed the victim, and the evidence introduced at trial left it unclear as to who ultimately delivered the fatal wound to the victim's throat. (RT at 3350-3353.) Moreover, while there was trial testimony from prosecution witnesses that petitioner was the leader of the group, there was competing testimony suggesting that his leadership of those involved was not total. (RT at 3325, 4365.) Further, all six participants -- including Michelle Cram and Bruce Smith, both of whom received significantly reduced sentences -- agreed to the plan to kill the victim. (RT at 2980, 3320-3326.) Finally, there was evidence that Robert Coville originally volunteered to commit the murder and was, according to the group's alleged plan, assigned to do the actual killing. (RT at 3027, 3323, 3326.)

The prosecutor's argument to the jury at the conclusion of the penalty phase further demonstrates how petitioner was prejudiced by his counsel's ineffective performance. In his summation the prosecutor scoffed at the defense's presentation of petitioner's service in Vietnam:³⁶

36 As noted, that defense penalty phase presentation consisted merely of the conclusory and undeveloped testimony of petitioner's mother and sister that petitioner had "changed" after he returned from Vietnam and the unadorned submission into evidence of the certificates reflecting petitioner's Bronze Star and Army Commendation Medal.

The only thing they say is in essence . . . that after he came back from Viet Nam, he was changed. Is that so unexpected? Who isn't changed by war? I may live long enough to stop hearing the Viet Nam war blamed for everything from murder to measles. I don't know. But is that really an excuse for what Mr. Webster did to Charles Burke? And that's why it's offered. It's offered as a
mitigating factor so that he will not suffer the ultimate penalty. So that you will not impose the death penalty on him. And I submit to you that that's not sufficient.

(RT at 5490.) The undersigned harbors no doubt that the prosecutor would not have made such a denigrating argument had his closing argument followed testimony from Joseph Clock, Thomas Boling, Allen Rozier, Freddie DeVera, Joe West, John Henry Helm and the other Vietnam veterans who were available to testify in the penalty phase as to exactly how they, and petitioner, had been effected by their experiences during the war in Vietnam.

With regard to the rest of the exceedingly brief mitigation case presented by petitioner's counsel, the prosecutor argued to the jury as follows:

And then he brings in three family members, his two sisters and his mother. They haven't seen him for eleven years . . . . They don't know anything about his life style. They don't know anything about his friends, they don't know whether or not he's worked anywhere. We don't know whether he's ever worked anywhere.

* * *
I think the significant thing, however, is the fact that both Mr. Webster and Mr. Madrigal in their attempts to put before you mitigating factors, or people that will come in and say nice things about them, who have they got? Webster's got three prison employees and three family members . . . . Wouldn't you think between them that they'd have somebody from the mainstream of life that could come in here and say something good about them? Wouldn't you think that there'd be somebody in this world other than a family member that could come in and say, yeah, he worked for me, he was a good employee, or I knew him, he was a good guy or something?

(RT at 5491-92.) Again, the undersigned has serious doubt that the prosecution would have made such an argument to a jury that had just heard testimony from Delmer Barks, Geraldine Rogers, Pat Hartmann, Darlene Wickham, Larry Cole, Loyd Morgan, Patsy Helm Dillon, Wendell Crutchfield, or the numerous other witnesses who were not members of petitioner's family, all of whom were available, willing and able to testify that petitioner was once "a good guy" and much more.

Here, an adequate mitigation case would have presented the jury with a full social history of petitioner. Such a presentation would have explained to the jury why petitioner, raised in isolating poverty, was particularly vulnerable to the effects of combat and predisposed to drug and alcohol dependence. An adequate defense penalty phase presentation would have likely lessened petitioner's moral culpability in the eyes of the jury by explaining to them who he was and how he came to be homeless, desperate and destitute on the banks of the American River.

In short, the jury that voted for petitioner to be sentenced to death did so without an adequate understanding of the nature of his life up to the point of the murder for which they had convicted him and without exposure to the substantial mitigating evidence that may well have caused them to reach a different penalty phase verdict. The evidence of prejudice stemming from trial counsel's ineffective assistance in connection with the penalty phase trial that has been submitted to this court is therefore sufficient to "undermine confidence" in the jury's verdict. The aggravating evidence presented was not so great as to sweep aside the compelling mitigating evidence, nor was it so great as to compel the conclusion that a jury would not have sentenced petitioner to life without the possibility of parole had they been presented with the available mitigation evidence. For these reasons the undersigned finds that "[h]ad the jury been able to place petitioner's excruciating life history on the mitigating side of the scale, there is a reasonable probability that at least one juror would have struck a different balance." Wiggins, 539 U.S. at 537. See also Stankewitz v. Wong, 698 F.3d at 1175 (quoting Wiggins); Hamilton, 583 F.3d at 1134; Karis, 283 F.3d at 1140 ("A 'reasonable probability' exists that a jury would find this information important in understanding the root of [petitioner's] criminal behavior and his culpability.")

Accordingly, the undersigned will recommend that petitioner be granted federal habeas relief with respect to his claim that he was denied the effective assistance of counsel at the penalty phase of his trial in violation of his rights under the Sixth Amendment.

B. Denial of Meaningful Appellate Review in Violation of the Eighth Amendment

In his Claim 7, petitioner argues that when his conviction and sentence became final in 1992,³⁷ a majority of the justices on the California Supreme Court were so predisposed to affirm death sentences that he was deprived of "meaningful appellate review" with respect to his conviction and sentence. He contends that California's judicial retention election of 1986, which occurred while his appeal was pending, "dramatically change[d] the way that death penalty cases were decided." (Pet. Brief re Claim 7 (Dkt. No. 431) at 13.) Petitioner asserts that "[i]n the aftermath of the judicial retention election . . . the California Supreme Court failed in its statutory and constitutional duty to review capital appeals, and petitioner was therefore denied this necessary element of a death penalty system [that complies] with the Eighth Amendment." (Id. at 25.)

37 The California Supreme Court handed down its decision on petitioner's direct appeal on August 30, 1991, and denied his motion for rehearing on November 20, 1991. Petitioner's judgment of conviction and sentence became final when the United States Supreme Court denied the petition for writ of certiorari on April 27, 1992. See Webster v. California, 503 U.S. 1009 (1992); see also In re Pine, 66 Cal. App. 3d 593, 595 (1977) (holding "[t]he finality of a judgment has been defined as that point at which the courts can no longer provide a remedy on direct review. This includes the time within which to petition the United State Supreme Court for writ of certiorari").

In support of his claim, petitioner provides a short history of the political environment that he says "conspired to create a high court in California that produced affirmances in death penalty cases without a proper, careful, appellate review of the errors alleged." (Id. at 26.) What follows is petitioner's characterization of events and the court makes no finding and expresses no opinion as to its accuracy but does take judicial notice of the reports from that era that support petitioner's historical premise. Specifically, petitioner argues as follows. The California Supreme Court under former Chief Justice Rose Bird - "the Bird Court" - was considered by pro-capital punishment advocates to harbor a "pronounced antipathy toward the death penalty."³⁸ (Id. at 10.) Those in favor of capital punishment formulated a state-wide political "strategy. . . not just to remove the justices who had supposedly refused to implement the death penalty, but to also replace them with justices who would." (Id.) Governor George Deukmejian, who was running for re-election in 1986, allied himself with the pro-capital punishment movement. He campaigned for the "restoration of the death penalty" and "attack[ed]" the justices who were perceived as opposing it. (Id. at 9.) In the end, three justices on the Bird Court, including Chief Justice Bird, were defeated at the polls in November 1986. Governor Deukmejian was re-elected, giving him the responsibility - and the prerogative - of immediately replacing the three outgoing judges.³⁹ He also elevated Justice Malcolm Lucas, who was perceived as a pro-capital punishment justice and had retained his position on the court in the election, to Chief Justice, thus creating the new "Lucas Court." (Id. at 13.)

38 This description appeared in a "White Paper" issued by the California District Attorneys' Association (CDAA) in 1985. (See Pet. Brief re Claim 7 (Dkt. No. 431) at 10.) Petitioner represents that "[t]he District Attorney of Sacramento County, the government entity that had successfully convinced a jury to sentence Mr. Webster to death, was on the Board of Directors for the CDAA." (Id.) Later in his argument, petitioner notes that "this is the same entity . . . that sought to win the appeal that was [at the time of the election] pending before the California Supreme Court." (Id. at 12.)

39 "The initial three replacement justices served for only two to three years before they were replaced themselves by three more Governor Deukmejian appointees[.]" (Id. at 13.)

Petitioner contends that the Lucas Court reviewed capital cases very differently than did the Bird Court. "A [California Supreme Court] which had scrutinized capital judgments and reversed almost every death sentence that came before it was altered completely to a court which adopted a review process that resulted in an extremely high affirmance rate based upon a much more forgiving attitude toward trial-court error."⁴⁰ (Id.) This new approach, argues petitioner, violated the already existing mandate that a state's capital sentencing system, to be constitutional, must narrow the category of cases in which the death penalty is appropriate and provide for "special" scrutiny of death sentences through "meaningful appellate review." (Id. at 26.) By the time his appeal was submitted for decision to the Lucas Court, petitioner says,

40 In his second amended petition filed with this court, petitioner cites the following statistics on the Lucas Court's affirmance rates in appeals from death sentences, as reported by the California Appellate Project: "Between July 1987 and December 1994, the California Supreme Court affirmed 84% of death penalty cases. Between 1990 and 1994 the affirmance rate was 94%. In it has affirmed 100% of the death judgments before it." (Dkt. No. 73 at 52.)

there was no special appellate review, no attempt to use the appellate review process to assure a rational, non-arbitrary death penalty system, no allegiance to Eighth Amendment requirements to reduce the risk of capriciousness. Like the state court in Parker v. Dugger, [498 U.S. 308 (1991),] "there is a sense in which the court did not review [petitioner's] sentence at all."

(Id.)

1. Whether this claim is barred under Teague v. Lane

Respondent counters this claim first by asserting that "there is no free-standing Eighth Amendment right to 'meaningful appellate review' as Petitioner implies." (Respondent's Opp'n re Claim 7 (Dkt. No. 438) at 17.) Respondent also invokes the holding in Teague v. Lane, 489 U.S. 288 (1989), to argue that even if this court recognizes "meaningful appellate review" as a constitutional requirement in capital cases, that finding would create a new rule of criminal procedure that cannot be retroactively applied to this habeas petition. In short, respondent argues that petitioner's claim that he was denied meaningful appellate review is Teague-barred.

Under Teague, "'old' rules of criminal procedure apply 'both on direct and collateral review, but a new rule is generally applicable only to cases that are still on direct review.'" Butler v. Curry, 528 F.3d 624, 633 (9th Cir.) (quoting Whorton v. Bockting, 549 U.S. 406, 416 (2007)). "A holding constitutes a 'new rule' within the meaning of Teague if it 'breaks new ground,' 'imposes a new obligation on the States or the Federal Government,' or was not 'dictated by precedent existing at the time the defendant's conviction became final.'" Graham v. Collins, 506 U.S. 461, 467 (1993) (quoting Teague, 489 U.S. at 301). See also Butler v. McKellar, 494 U.S. 407, 412 (1990). Any "new" rule that emerges after a prisoner's conviction is final cannot be retroactively applied on collateral review unless that rule was already dictated by precedent as of the date the conviction became final. Teague, 489 U.S. at 301

"When a State raises the issue of retroactivity, 'federal habeas courts must apply Teague before considering the merits' of the claim." Butler, 528 F.3d at 633 (quoting Beard v. Banks, 542 U.S. 406, 412 (2004)). "[T]he Teague non-retroactivity principle is . . . an affirmative defense that must be raised by the state." Thompson v. Runnels, 705 F.3d 1089, 1099 (9th Cir.) (citing Caspari v. Bohlen, 510 U.S. 383, 389 (1994)), cert. denied, ___ U.S. ___, 134 S. Ct. 234 (2013). See also Divens v. Giurbino, No. CV 06-786 GAF (FFM), 2009 WL 3208673, at *4 n.4 (C.D. Cal. Oct. 4, 2009) ("The Teague-bar is an affirmative defense. As with any affirmative defense, the party seeking to invoke it bears the burden of proving that it applies to their case.") (citing Schiro v. Farley, 510 U.S. 222, 228 (1994)). Applying Teague requires three steps:

First, the court must ascertain the date on which the defendant's conviction and sentence became final for Teague purposes. Second, the court must "[s]urvey the legal landscape as it then existed" and "determine whether a state court considering [the defendant's] claim at the time his conviction became final would have felt compelled by existing precedent to conclude that the rule [he] seeks was required by the Constitution." Finally, even if the court determines that the defendant seeks the benefit of a new rule,
the court must decide whether that rule falls within one of the two narrow exceptions to the nonretroactivity principle.

Caspari, 510 U.S. at 390 (citations omitted).⁴¹

41 The two exceptions to Teague's non-retroactivity principle are: (1) when the new rule places "certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe," Teague v. Lane, 489 U.S. 288, 290 (1989); or (2) when the new rule represents a "watershed . . . of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding." Whorton v. Bockting, 549 U.S. 406, 416 (2007). Petitioner does not argue that either applies here. Therefore, the court need not address them.

Petitioner's judgment of conviction and death sentence became final when the U.S. Supreme Court denied his petition for writ of certiorari on April 27, 1992. See fn. 37, above. By that time, the Supreme Court had used the recognizable language of its Eighth Amendment death penalty jurisprudence to affirm - and reaffirm - the indispensable role of "meaningful appellate review" in capital cases. In 1991, the Supreme Court said it had "emphasized repeatedly the crucial role of meaningful appellate review in ensuring that the death penalty is not imposed arbitrarily or irrationally." Parker v. Dugger, 498 U.S. 308, 321 (1991) (citing Clemons v. Mississippi, 494 U.S. 738, 749 (1990) and Gregg v. Georgia, 428 U.S. 153 (1976)). Two years earlier, the Supreme Court contrasted the lack of any due process guarantee to appeal a non-capital criminal conviction⁴² with

42 See, e.g., Halbert v. Michigan, 545 U.S. 605, 610 (2005) ("The Federal Constitution imposes on the States no obligation to provide appellate review of criminal convictions.") (citing McKane v. Durston, 153 U.S. 684, 687 (1894)).

[t]he unique nature of the death penalty[, which] not only necessitates additional protections during pretrial, guilt, and sentencing phases, but also enhances the importance of the appellate process. Generally there is no constitutional right to appeal a conviction. "[M]eaningful appellate review" in capital cases, however, "serves as a check against the random or arbitrary imposition of the death penalty." It is therefore an integral component of a State's "constitutional responsibility to tailor and apply its law in a manner that avoids the arbitrary and capricious infliction of the death penalty."

Murray v. Giarratano, 492 U.S. 1, 22-23 (1989) (quoting Gregg, 428 U.S. at 195 (opinion of Stewart, Powell and Stevens, JJ.) and Godfrey v. Georgia, 446 U.S. 420, 428 (1980) (citation omitted)). The difference explained in Murray is, among other things, categorical: the Eighth Amendment's prohibition against arbitrary and capricious executions, and not just the Fourteenth Amendment's Due Process Clause, is at stake when a criminal defendant is sentenced to death. Under the Eighth Amendment, "some form of meaningful appellate review is constitutionally required" in a capital case. Pulley v. Harris, 465 U.S. 37, 54 (1984) (Stevens, J., concurring). See also Zant v. Stephens, 462 U.S. 862, 890 (1983) (explaining that "[o]ur decision in this case depends in part on an important procedural safeguard, the mandatory appellate review of each death sentence by the Georgia Supreme Court to avoid arbitrariness and to assure proportionality"); Barclay v. Florida, 463 U.S. 939, 953-54 (1983) (upholding Florida's capital punishment statutory scheme in part because "meaningful appellate review of each such sentence is made possible"); Clemons, 494 U.S. at 749 (stating in 1990 that "this court has repeatedly emphasized that meaningful appellate review of death sentences promotes reliability and consistency").

By April 27, 1992, the legal landscape clearly included meaningful appellate review as an "integral," Murray, 492 U.S. at 23, and "crucial," Parker, 498 U.S. at 321, feature of a constitutional capital sentencing regime. To the extent, therefore, that respondent contends petitioner's claim is Teague-barred because he seeks the retroactive benefit of a newly announced Eighth Amendment requirement calling for "meaningful appellate review," that contention is wrong, as a matter of law. That requirement was well established by decisions rendered in capital cases by the time petitioner's death sentence became final. Petitioner's Claim 7 is therefore not Teague-barred.

a. Whether petitioner's claim over-extends "meaningful appellate review"

Respondent argues alternatively that even if meaningful appellate review was required under the Eighth Amendment when petitioner was convicted, granting relief on this claim would so extend the meaning of "meaningful appellate review" that it would, in effect, create a new constitutional rule that cannot be retroactively enforced under Teague. Respondent's argument correctly recognizes that the central question under Teague remains claim-specific. That is, even though it is clear that meaningful appellate review had already been established as a constitutional requirement by the time petitioner was convicted, "it is necessary to inquire whether granting the relief sought would create a new rule because the prior decision [would be] applied in a novel setting, thereby extending the precedent." Stringer v. Black, 503 U.S. 222, 228 (1992). See also Wright v. West, 505 U.S. 277, 307 (1992). The burden of being specific is, as usual, on the party pleading the claim. It is true enough to say, as petitioner does, that "[t]he purpose of meaningful appellate review is to guard against arbitrariness and irrationality in the administration of the death penalty" and that "[b]y so doing, meaningful appellate review promotes 'reliability and consistency.'" (Pet. Reply (Dkt. No. 440) at 5.) However, that only repeats the standards by which the particulars of any capital punishment system are assessed under the Eighth Amendment. Petitioner cannot rest on the pre-existence of those broad purposes in "meaningful appellate review," assert that he did not receive meaningful review and leave it at that. On the other hand, petitioner need not show that every conceivable implication of his claim had already been adjudicated in other cases before his judgment of conviction became final. This is because "Teague does not . . . require a habeas petitioner to show that the Supreme Court has decided a case involving identical facts, circumstances and legal issues." Butler, 528 F.3d at 634.

This inquiry is particularly problematic here because the contours of "meaningful appellate review" have not, even now, been fully defined by the courts and because petitioner is somewhat imprecise in identifying just how the appellate review that he received was not meaningful. To the former point, petitioner contends that the constitutional necessity of meaningful appellate review in capital cases "means that the appellate process must be careful, measured and special, an important and necessary tool in minimizing the risk of irrational imposition of the death penalty." (Pet. Brief re Claim 7 (Dkt. No. 431) at 26.) Respondent objects to petitioner's inclusion of the term "special" into the definition of "meaningful appellate review," insisting that "appellate review need not take any particular form; it is enough that 'some sort of prompt and automatic appellate review' be available." (Opp'n (Dkt. No. 438) at 18 (quoting Pulley, 465 U.S. at 50-51)). Respondent also objects that no legal precedent allows petitioner to insert the politics of capital punishment and the California Supreme Court's supposed response to popular will as the basis of an Eighth Amendment claim. Respondent contends that "it [cannot] be said that the state court would have felt 'compelled by existing precedent to conclude' that the Constitution required it to find that it was inconsistent with the Eighth Amendment for California Supreme Court justices to be accountable to the voters and subject to retention at the voters' will." (Id. at 19) (citation omitted). Respondent argues that these two objectionable elements sit at the core of petitioner's claim and render it Teague-barred because, in order to prevail, "[p]etitioner must persuade this Court to rule (1) that meaningful appellate review is not possible if judges are subject to political influence, and (2) that the Eighth Amendment required 'special' review." (Id. at 17.)

The undersigned does not read petitioner's claim as seeking a broad declaration that all appellate judges who are "subject to political influence" - i.e., elected or subject to retention elections - are incapable of providing meaningful appellate review in a capital case. That is an overbroad characterization of petitioner's claim, but it is not an unreasonable one: petitioner clearly takes the position that the pro-death penalty environment of the 1986 retention election created a politicized California Supreme Court that "abandoned the use of appellate review as a way of achieving reliable death sentences." (Pet. Brief re Claim 7 (Dkt. No. 431) at 25.) Petitioner adds that this "abandonment" was borne not of the Lucas Court's restrictive interpretation of the Eighth Amendment but of the collective self-interest of a majority of the justices. He alleges that "[a]s the retention election of 1986 proved, for a California Supreme Court justice to keep his or her job, death sentences must be affirmed." (Pet. (Dkt. No. 73) at 54.) Taken alone, petitioner's bald statement that "[t]he political system simply does not permit [the California Supreme Court] to be fair and impartial" (id.) would seem to implicate and seek to invalidate the longstanding practice of electing state court judges in California. However, taken in the context of his entire argument, it is clear that petitioner means to focus only on the California Supreme Court that decided his case in 1992. Despite the grievance against the alleged influence of state politics on judicial decision-making that permeates petitioner's argument, he stops short of demanding that this court accept that grievance as the basis of a constitutional violation. Instead, petitioner asserts that

whether or not the Lucas Court was biased against capital defendants is not the essence of this issue . . . . [W]hatever the motivation, the Eighth Amendment violation lies in the appellate court's treatment of petitioner's appeal as no different than the way
an intermediate appellate court treats a regular appeal.

(Pet. Brief re Claim 7 (Dkt. No. 431) at 26.)⁴³

43 By discounting the "motivation" of the Lucas Court as "the essence of this issue," petitioner also dissociates his "meaningful appellate review" claim from his petition's initial assertion that, following the 1986 retention election, California Supreme Court justices have a "financial interest" in ruling against death row appellants because doing so helps those justices stay in office. (Pet. (Dkt. No. 73) at 54.)

Still, petitioner's complaint that he received only the review that a non-capital defendant in an intermediate appellate court might have received does not guide this federal habeas court to the specific legal ruling and factual finding that petitioner needs in order to win relief on this claim. Petitioner's employment of the word "special" does not aid in the inquiry: it adds nothing to the standard that the Supreme Court had already articulated when petitioner's conviction became final - that is,

meaningful appellate review requires that the appellate court consider the defendant's actual record. "What is important ... is an individualized determination on the basis of the character of the individual and the circumstances of the crime."

Parker, 498 U.S. at 321 (quoting Zant, 462 U.S. at 879).

The vagueness of the term "special" as used by petitioner in this claim does not mean that claim for relief fails, however. The gravamen of his claim lies in the only specific description of the Lucas Court's allegedly unconstitutional practice in deciding appeals in capital cases, i.e., its supposedly "'extraordinary tolerance for error' in the penalty phase" in which, according to petitioner, "the Lucas Court relied excessively and repetitively on the harmless error doctrine to avoid reversing death sentences." (Pet. Brief re Claim 7 (Dkt. No. 431) at 25.)⁴⁴

44 Petitioner adopts the phrase "extraordinary tolerance for error" verbatim from one of his experts' reports, a study performed by Professor John W. Poulos (see Poulos Decl., Ex. 47 (Dkt. No. 377-1) at 16), on which petitioner relies to declare that "[t]he use of the harmless error doctrine to affirm cases was rampant in the Lucas Court['s] first year opinions." (Pet. Brief re Claim 7 (Dkt. No. 431) at 15.)

Indeed, most of petitioner's expert evidence analyzing the Lucas Court's record in capital appeals directly informs his articulation of his claim that the Lucas Court violated the Eighth Amendment by misusing the harmless error doctrine in its allegedly "result driven" method of reviewing capital cases. These experts better explain what petitioner means in arguing that "the Eighth Amendment violation lies in the appellate court's treatment of petitioner's appeal as no different than the way an intermediate appellate court treats a regular appeal." (Pet. Brief re Claim 7 (Dkt. No. 421) at 26.) For example, petitioner cites a law review article by Professor Gerald Uelmen, who, two years after the Lucas Court was seated -- and thus before it decided petitioner's appeal -- contended that the new California Supreme Court

approaches the review of death penalty cases very much like intermediate appellate courts approach the review of ordinary criminal cases. The process closely matches the process described in a classic study of criminal appeals[:] "The court approached its work from a perspective that is noninterventionist, nonsupervisory, and conflict avoiding. Its decision process accentuates the value of finality and is strongly inclined toward affirmance." That study noted that a high rate of affirmance in criminal appeals reflected basic institutional norms and perspectives.

(Uelmen Article, Ex. 129 (Dkt. No. 368-4) at 3.)⁴⁵ Professor Uelmen's study concludes that "[i]n the Lucas Court, the basic norms of appellate review [became] norms of affirmance." (Id. at 56.) Furthermore, an article by C. Elliot Kessler submitted by petitioner pointedly finds that the Lucas Court employed the harmless error doctrine for the unconstitutional purpose of "recogniz[ing] no distinction between the weighing of aggravating and mitigating circumstances in a capital case[.]" (Kessler Article, Ex. 130 (Dkt. 368-5) at 45.)⁴⁶ And the most exhaustive report included within the evidence submitted by petitioner, Professor Sam Kamin's study of the Lucas Court's entire nine years of deciding capital case appeals, expressly confirms Professor Uelmen's "intermediate court" analogy. (Kamin Decl., Ex. 46 (Dkt. No. 367-2) at 52-53.) As petitioner explains it:

Professor Kamin concluded that the Lucas Court used the harmless error doctrine as its primary technique to affirm capital appeals . . . . [T]he Lucas Court avoided rule making - trying to define the dimensions of Constitutional law - and instead emphasized its role in capital appeals as simply a search for prejudicial error. And with the threshold for error impossibly high, this approach was "designed to facilitate the affirmance of death sentences rather than the supervision of trial courts."

(Pet. Brief re Claim 7 (Dkt. No. 431) at 18 (quoting Kamin Decl. at 52).)

45 Gerald F. Uelmen, Review of Death Penalty Judgments by the Supreme Courts of California: A Tale of Two Courts, 23 Loy. L. Rev. 237 (1989) (quoting Thomas Y. Davies, "Affirmed: A Study of Criminal Appeals and Decision-Making Norms in California Courts of Appeal," 1982 Am.B. Found. Res.J. 543, 612 (1982)).

46 C. Elliot Kessler, Death and Harmlessness: Application of the Harmless Error Rule by the Bird and Lucas Courts in Death Penalty Cases - A Comparison & Critique," 26 U.S.F. L. Rev. 41 (1991).

Petitioner builds on these experts' analyses and their terminology to render his clearest articulation of his claim and what his evidence shows:

Turning to the record before the Court in this case, petitioner has demonstrated that Mr. Webster received no meaningful appellate review. In the aftermath of the judicial retention election of 1986, the California Supreme Court failed in its statutory and constitutional duty to review capital appeals, and petitioner was therefore denied this necessary element of a death penalty system complying with the Eighth Amendment.
The authorities and evidence presented to this Court show that, as a result of the retention election, the Lucas Court simply stopped scrutinizing issues in capital appeals. The court's approach was purposefully noninterventionist, intentionally laissez faire. With an "extraordinary tolerance for error" in the penalty phase, the Lucas Court relied excessively and repetitively on the harmless error doctrine to avoid reversing death sentences. Such opinions were result driven, contained little in the way of analysis, and constituted illegitimate decision making.

(Pet. Brief re Claim 7 (Dkt. No. 431) at 25.)

In light of the nature of petitioner's arguments and supporting evidence, the undersigned finds that in order to be entitled to relief on a claim that he was deprived meaningful appellate review by the state courts, petitioner in this case must establish each of the following three elements: (1) that at the time petitioner's conviction became final the California Supreme Court's alleged "noninterventionist" practice of appellate review that "relied excessively and repetitively on the harmless error doctrine to avoid reversing death sentences," if true, violated the Eighth Amendment; (2) that the Lucas Court systematically applied the doctrine of harmless error for the pre-determined purpose of avoiding the reversal of death sentences; and (3) that petitioner was one of the capital case defendants who was denied meaningful appellate review in the Lucas Court's unconstitutional method of looking for harmless error in order to affirm death sentences in such cases. Below, the undersigned will address petitioner's showing with respect to each of these three elements.⁴⁷

47 Again, the question the court must ask under Teague is whether, at the time his conviction and sentence became final, granting petitioner's claim on these terms would have so extended the existing precedent on meaningful appellate review as to announce an entirely new constitutional rule. If it would, the claim is Teague-barred. See Stringer v. Black, 503 U.S. 222, 228 (1992).

b. Mechanical application of harmless error as a constitutional violation

In Clemons v. Mississippi, 494 U.S. 738 (1990), a case decided more than two years before petitioner's conviction became final, the Supreme Court upheld the Mississippi Supreme Court's practice of "reweighing" on appeal the mitigating and aggravating factors that were presented to a jury during the penalty phase of the trial in a capital prosecution.⁴⁸ The Supreme Court made it clear, however, that meaningful appellate review required the Mississippi court to carry out its reweighing duty conscientiously and barred it from using a pro forma analysis that would deprive a capital defendant of the second look that appellate review is meant to ensure. The Court said that

48 Like California, Mississippi has been a "weighing State" in its capital punishment process for most of the post-Furman era. In a weighing state, "the finding of aggravating factors is part of the jury's sentencing determination, and the jury is required to weigh any mitigating factors against the aggravating circumstances." Clemons v. Mississippi, 494 U.S. 738, 745 (1990).

[a]n automatic rule of affirmance in a weighing State would be invalid . . . for it would not give defendants the individualized treatment that would result from actual reweighing of the mix of mitigating and aggravating circumstances.

Clemons, 494 U.S. at 752. In so ruling, the Supreme Court relied in part on its plurality opinion in Barclay v. Florida, in which the Court surveyed prior appellate decisions in Florida capital cases and concluded that "'the Florida Supreme Court does not apply its harmless error analysis in an automatic or mechanical fashion, but rather upholds death sentences on the basis of this analysis only when it actually finds that the error is harmless.'" Clemons, 494 U.S. at 752 (quoting Barclay, 463 U.S. at 958 (plurality opinion)). As did the Supreme Court in Clemons, the Barclay plurality re-emphasized the importance of "'an individualized determination on the basis of the character of the individual and the circumstances of the crime.'" Barclay, 494 U.S. at 958 (quoting Zant, 462 U.S. at 879).

The plurality's discussion of the proper role of the harmless error doctrine in Barclay and the majority's ratification of that plurality opinion in Clemons would have compelled a ruling in 1992, when petitioner's judgment of conviction became final, that systematic invocation of the harmless error doctrine to evade individualized appellate review of death sentences violates the Eighth Amendment. In light of that authority and its timing, the undersigned finds that petitioner's allegation that the Lucas Court "relied excessively and repetitively on the harmless error doctrine to avoid reversing death sentences" in violation of the Eighth Amendment would not, if proved and accepted as the basis of habeas relief in this case, extend the definition of meaningful appellate review so far that it would constitute a new rule. On that first element then, the undersigned concludes that petitioner's meaningful appellate review claim is not Teague-barred.

c. Application of the harmless error doctrine in deciding petitioner's appeal

The proper procedure for analyzing whether the Lucas Court misapplied harmless error review "in an automatic or mechanical fashion," Barclay, 463 U.S. at 958, is not entirely clear. As noted above, the Barclay plurality opinion surveyed the Florida Supreme Court's post-Furman record in capital appeals, but if there is a quantum for determining at what point an appellate court's practice of applying the harmless error doctrine becomes unconstitutional - that is, for determining whether the second element enumerated above is met -- the Barclay plurality opinion left it unsaid. However, the court need not divine the precise standard to be used in assessing such a claim because there is no evidence before the court that this petitioner was one of the defendants subjected to the Lucas Court's supposed misuse of the harmless error doctrine.

Even assuming the Lucas Court put into effect an unconstitutional method of appellate review, it remains incumbent on petitioner to demonstrate how that violation manifested itself in his direct appeal. Petitioner has not made that showing. Instead, petitioner's argument contains only a cursory discussion of the California Supreme Court's decision affirming his judgment of conviction on appeal. Specifically, he takes issue with the California Supreme Court's affirmance of the two special circumstances that made him death-eligible - i.e., murder in the commission of a robbery and murder while lying in wait. Notably, however, the California Supreme Court did not apply a harmless error analysis to those crucial issues when it upheld petitioner's judgment of conviction and sentence. See People v. Webster, 54 Cal.3d 411, 439-44, 448-50 (1991). Rather, it examined the sufficiency of the evidence as to the two special circumstances underpinning petitioner's death sentence and found no error in that regard on either one. Id.

This disconnect between petitioner's legal theory of his claim and the actual appellate review he received results in an unpersuasive presentation of "evidence" in support of the claim in this case. Rather than take up the California Supreme Court's analysis on its own terms, petitioner submits Professor Poulos's deposition testimony and opinion that the Lucas Court's analyses of the two aggravating circumstances supporting petitioner's sentence were examples of the court's "improper decision making." (Pet. Brief re Claim 7 (Dkt. No. 431) at 21.) But Professor Poulos does not, as he cannot, assert that the analyses of the two aggravating circumstances were examples of the court's practice of relying "excessively and repetitively on the harmless error doctrine to avoid reversing death sentences," which is the essence of petitioner's claim in this federal habeas proceeding. (Id. at 25.) Instead, Professor Poulos testified that the California Supreme Court "manipulated the law regarding the concept of lying in wait" and "expand[ed] the scope of the robbery concept 'for death penalty reasons.'" (Id. at 21 (quoting Poulos Depo. (Dkt. No. 428) at 72-74, 82-85).) According to Poulos, these two rulings "mark[ed] a new tool for the Lucas Court" in which it expanded the definitions of the underlying crimes in ways that "fly in the face of the history of the common law[.]" (Poulos Depo. at 72-73.) Neither Professor Poulos nor petitioner's counsel is specific about how that "tool" was used again in a capital case, if it ever was. In any event, Professor Poulos' opinion about the Lucas Court brandishing its "new tool" in connection with petitioner's appeal is of little moment, for it is inapposite to the claim that petitioner sets out for himself to prove, that in his case the Lucas Court's existing machinery of finding harmless error produced the affirmance of a death penalty conviction indicative of meaningless appellate review.⁴⁹

49 The undersigned notes that when an expert's opinion takes the form of legal interpretation or outright application of law to fact, it crosses into the forbidden category of an inadmissible legal conclusion. See CFM Communications, LLC v. Mitts Telecasting Co., 424 F. Supp. 2d 1229, 1235-36 (E.D. Cal. 2005) (excluding an expert's report from evidence because it "read[s] like a legal brief" and "[t]he Court is perfectly able to review. . . decisions and regulations to decide how the law applies to the present facts"); Smith v. Pacific Bell Telephone Co., Inc., 649 F. Supp. 2d 1073, 1089 (E.D. Cal. 2009) (citations omitted) ("Testimony in the form of a legal conclusion is an inappropriate matter for expert testimony.") Because respondent raises no objection to Professor Poulos' opinion testimony on that ground, the court will not rule on its admissibility.

Professor Poulos' assertion that the California Supreme Court's decision affirming petitioner's judgment of conviction contains a "new tool" is also contrary to the law of this case. The Ninth Circuit previously reversed this court's decision that in upholding petitioner's sentence the California Supreme Court retroactively expanded the construction of robbery and lying in wait so radically that it violated the Ex Post Facto Clause under the holding in Bouie v. City of Columbia, 378 U.S. 347 (1964).⁵⁰ See Webster, 369 F.3d at 1070-1075. Even granting Professor Poulos his description of the Lucas Court's rulings on robbery and lying in wait as an expansive, "new tool," it is the law of this case that those rulings were not so expansive and new that they violated the constitutional prohibition on retroactive punishments.

50 In that case the Supreme Court held that "[i]f a judicial construction of a criminal statute is 'unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue,' it must not be given retroactive effect." Bouie, 378 U.S. at 354.

Petitioner does not focus his meaningful appellate review claim on any other specific issues that were decided in his appeal. Accordingly, this court need not express any opinion, nor make any finding, as to the constitutional validity of the Lucas Court's prevailing use of the doctrine of harmless error when petitioner's appeal came before it. Regardless of how the Lucas Court was applying the harmless error doctrine in reviewing other capital convictions, in this case the question simply does not obtain.

2. Conclusion

For all the reasons set forth above, the undersigned finds that the legal basis underlying petitioner's claim that the California courts denied him constitutionally required meaningful appellate review by mechanically applying the harmless error doctrine to avoid reversal of capital convictions - is not Teague-barred. However, the undersigned further finds that there is no evidence before this court that petitioner suffered a constitutional violation of that sort. Accordingly, it will be recommended that federal habeas relief be denied with respect to this claim.

C. California's Statutory Scheme Fails to Adequately Narrow Application of the Death Penalty

In his Claim 2, petitioner argues that California's capital sentencing scheme failed to adequately narrow the class of persons eligible for the death penalty in violation of the Eighth Amendment ban on arbitrary and capricious sentencing. With respect to this claim, the parties filed points and authorities, along with evidence in the form of transcripts of in-court testimony, depositions in lieu of in-court testimony, declarations and exhibits.⁵¹

51 As anticipated, petitioner submitted transcripts of testimony taken in Ashmus v. Ayers, No. 93 cv 00594 (N.D. Cal.). (Dkt. Nos. 135, 138, 154, and 155.) In addition, petitioner has submitted exhibits 134, 136, 137, 139-144 (Dkt. Nos. 442-445); and exhibits 149-153 (Dkt. No. 458). Petitioner states that his exhibits 149 and 150 supersede previously filed exhibits 145, 146, 147, and 148. (See Dkt. No. 472 at 2-3.) Respondent has submitted exhibits A and B. (Dkt. No., 449.) Petitioner has also filed an Index to the Evidence which lists each exhibit and its location on the docket. (Dkt. No. 472.) For ease of reference, exhibits referred to herein are identified by their title and docket number.

As noted above, petitioner was tried and sentenced in 1983, for crimes committed in 1981, under California's 1978 death penalty statute.⁵² In California under that statutory scheme, a defendant was eligible for the death penalty or for a sentence of life in prison without the possibility of parole if a jury convicted him of first degree murder and found at least one special circumstance.⁵³ Cal. Penal Code §§ 190.1, 190.2, 190.4. If a prosecutor decided to seek the death penalty, a second trial was held to determine whether a death-eligible defendant should be sentenced to death or life without the possibility of parole. Id. § 190.4(a). At the time of petitioner's trial, California had twenty-seven special circumstances. Id. § 190.2.⁵⁴ Petitioner argues that those special circumstances are so numerous and so broad that at least one can be found in almost any first degree murder case. Therefore, he argues, California's special circumstances fail to narrow the class of murderers eligible for the death penalty, as required by the Eighth Amendment.

52 Appendix A to petitioner's opening brief regarding the narrowing claim is the 1978 version of the relevant code sections. (Dkt. No. 473-1.)

53 The jury in petitioner's case found that two special circumstances had been established: (1) murder committed while the defendant was engaged in the commission of, or attempted commission of, a robbery; and (2) "the defendant intentionally killed with victim while lying in wait." People v. Webster, 54 Cal. 3d at 423.

54 That provision listed nineteen separately numbered special circumstances encompassing twenty-seven distinct categories. However, special circumstance (a)(14), for a murder that "was especially heinous, atrocious, or cruel," was found unconstitutionally vague in 1990. People v. Sanders, 51 Cal. 3d 471 (1990). The current version of Penal Code § 190.2 lists thirty-three distinct categories of special circumstances.

Petitioner supports his argument in two ways. First, he sets out in some detail the history of the 1978 ballot initiative, the so-called "Briggs Initiative," that created the current death penalty scheme in California. He argues that the intent of its drafters, and by implication the intent of voters who approved the initiative, was to expand the death penalty to every first degree murderer. Second, petitioner presents empirical studies to show that the California capital sentencing scheme fails to narrow the death-eligible class. In this regard, petitioner relies primarily upon what he calls California's "death sentencing ratio." That ratio compares the potentially death-eligible class under California's statutory scheme with the number of death sentences imposed during the same period. Petitioner argues that so few death sentences resulting from such a large potential death-eligible class shows that the California death penalty scheme is applied arbitrarily and capriciously.

In support of his claim petitioner has presented three empirical studies. In the first, Professor Steven Shatz of the University of San Francisco School of Law and Nina Rivkind, an attorney and lecturer at the University of California at Berkeley, attempted to determine what percentage of first degree murder cases in California had or could have had special circumstance verdicts. They examined published opinions from the California Supreme Court and California Courts of Appeal and unpublished opinions from the California Court of Appeal for the First Appellate District in first degree murder cases from 1988-1992. Steven Shatz & Nina Rivkind, The California Death Penalty Scheme: Requiem for Furman?, 72 N.Y.U. L. Rev. 1283, 1326-27 (Dec. 1997) (hereafter "Requiem for Furman"); (Decl. of Steven Shatz, Ex. 134 (Dkt. No. 442-1) ¶ 8.). In total, they examined 404 court opinions. Requiem for Furman, 72 N.Y.U. L. Rev. at 1326. After removing some for various reasons, they ended up with a pool of 392. Id. & nn. 257, 262. In 239 of those cases, the state factfinder had found at least one special circumstance to be true. Id. at 13 29, 1331.⁵⁵ Two of these cases were reversed on appeal so they were considered to have no special circumstance findings. Id. In the remaining 153 cases, there were no special circumstance verdicts. Id. ⁵⁶ Professor Shatz and attorney Rivkind determined that special circumstances were present in 126 of those 153 cases in which no special circumstance verdict was returned. Id. The legal standard they applied in reaching these conclusions was "whether, under the facts stated, a reasonable juror could have found a special circumstance beyond a reasonable doubt." Id. at 1328 n. 256.

55 Tables 1 and 2, at pages 1329 and 1331 of the law review article categorize these cases. While they are not altogether clear in the Westlaw version of the article, it can be discerned in Table 1 that there are three categories of published opinions: those with a death judgment, those with a first degree murder verdict and a special circumstance finding, and those with only a first degree murder verdict. 72 N.Y.U. L. Rev. at 1329. Table 2 is, unfortunately, more confusing due to what appears to be a typographical error therein. The table describes two categories of unpublished first degree murder convictions from the California Court of Appeal for the First Appellate District. However, in the chart, both categories are titled "First Degree Murder with Special Circumstances." 72 N.Y.U. L. Rev. at 1331. A review of petitioner's briefs and Professor Shatz's testimony submitted in this case makes clear that the second category of cases should be titled only "First Degree Murder." Death judgments were issued in 158 cases (Table 1). In the non-death judgment cases, state court factfinders found special circumstances in 40 published cases (Table 1) and 41 unpublished cases (Table 2). Therefore, the court discerns that the total number of cases in the study in which state court factfinders found special circumstances was 239.

56 Table 1 of the law review article shows 52 cases with published opinions that did not include a special circumstance verdict. Table 2 shows no special circumstance verdict in 101 cases with unpublished opinions. Thus, the total number of cases reviewed in which no state factfinder had found a special circumstance is 153.

Based on these findings, Professor Shatz and attorney Rivkind determined that approximately 84% of all first degree murder cases were "factually" special circumstance cases. 72 N.Y.U. L. Rev. at 1332. During the relevant time period, California-wide there was an average of 346 persons convicted of first degree murder per year and an average of 33.2 persons sentenced to death. Id. at 1327-28. In other words, 9.6% of all first degree murderers in California were sentenced to death. Id. Comparing the two figures, Professor Shatz and attorney Rivkind determined that California's "death sentencing ratio," the percentage of potentially death-eligible murderers receiving the death penalty, was 11.4%. Id. at 1332.

Professor Shatz's second study focused on all murder convictions in Alameda County over a 23-year period and is similar in nature to his first study. See Steven Shatz, The Eighth Amendment, The Death Penalty, and Ordinary Robbery-Burglary Murderers: A California Case Study, 59 Fla. L. Rev. 719 (2007). For this second study, Professor Shatz relied upon the Alameda County Superior Court case files to determine whether or not special circumstances were present. (Shatz Testimony, Ex. 135 (Dkt. No. 442-1) at 1174.) After comparing the number of "factually death eligible" first degree murderers with the number of death sentences actually imposed, Professor Shatz arrived at a "death sentencing ratio" of 12.6% in the Alameda County cases. (Shatz Decl., Ex. 134 (Dkt. No. 442-1) at ¶¶ 11-12.)

Petitioner offers a third study, the "Baldus Study," conducted by David Baldus, a law professor at Iowa College of Law, and George Woodworth, Ph.D., a retired professor of statistics and actuarial science. (Decls. of Woodworth and Baldus, Ex. 149 (Dkt. No. 458-1) ¶ 1; Ex. 150 (Dkt. No. 458-2) at ¶ 1.) The Baldus Study focused on two calculations. It first sought to determine the "scope of death eligibility" in California since the decision in Furman. (Baldus Testimony, Ex. 154 (Dkt. No. 458-6) at 1569:17-20.) In addition, just as with Professor Shatz's two studies, it sought to determine a "death sentencing ratio" with respect to those cases. From 27,453 California convictions entered for first degree murder, second degree murder, and voluntary manslaughter with offense dates between 1978 and 2002, Professors Baldus and Woodworth studied a "representative sample" of 1,900 cases. (Baldus Decl., Ex. 150 (Dkt. No. 458-2) at ¶ 13.) They then developed a coding protocol to determine the presence of special circumstances from the information garnered from the probation reports for each of the 1,900 cases. (Id. at ¶¶ 15, 20-36.) In addition, the Baldus Study developed a coding system to determine whether the second degree and voluntary manslaughter cases were "factually first degree murder cases." (Id.) The Baldus Study coded a second degree murder or voluntary manslaughter case as "factually" first degree murder without regard for the actual conviction obtained unless a defendant had been charged with first degree murder, but had been convicted by a judge or jury of second degree murder or voluntary manslaughter. (Id. at ¶¶ 25, 26.) Similarly, a case was coded as having a special circumstance if any special circumstance that had not been rejected by a judge or jury could be found. (Id.) In other words, in this study the charging decisions of prosecutors were not considered determinative in any way.⁵⁷ (Id. at ¶ 26.) In addition, it was possible for a coder to apply a "jury nullification" exception where the evidence of first degree murder liability or a special circumstance was "overwhelming." (Id. at ¶ 31.)

57 However, in a separate portion of his declaration submitted to this court, Professor Baldus indicates that coders did not rely upon the prior verdicts, stating: "If the facts presented in the probation report for a case satisfy the test, the crime of conviction does not determine the factual eligibility of a case." (Dkt. No. 458-2, at ¶ 55.) In his opening brief addressing this claim, petitioner also states that the Baldus Study included all factual first degree murder cases "regardless of [the] crime of conviction." (Dkt. No. 473 at 29 n. 30.)

Student assistants then coded each case. (Baldus Decl., Ex. 150 (Dkt. No. 458-2) at ¶ 11.) Coding was done using three separate statutory schemes reflecting three time periods: (1) pre-Furman Georgia law; (2) California law during the "Carlos window;"⁵⁸ and (3) 2008 California law. (Id. at ¶ 32.) The coders were instructed to use a "legal sufficiency" standard in determining whether a case was a "factual first degree murder case" in which a special circumstance could be found. (Id. at ¶ 28.) According to Professor Baldus, the coders assumed a first degree murder conviction and the presence of a special circumstance had been found by a jury. (Id.) They then considered whether those convictions were supported by sufficient evidence. (Id.) He described application of the sufficiency of the evidence principle in the study as follows: "exculpatory evidence offered by the defendant (as reported in the probation report) is given no weight, but incriminating evidence offered by the defendant is credited." (Id.)

58 As described by Professor Baldus, the "Carlos window" refers to the time period after the California Supreme Court's decision in Carlos v. Superior Court, 35 Cal. 3d 131 (1983) in which that court held that the robbery felony-murder special circumstance required proof of intent to kill. The decision in Carlos was subsequently overruled in People v. Anderson, 43 Cal. 3d 1104 (1987) with respect to the application of that special circumstance to the actual killer. The limitation announced in Carlos thus applied only to murders committed between the date of the Carlos decision, December 12, 1983, and the date of the Anderson decision, October 13, 1987. (Baldus Decl., Ex. 150 (Dkt. No. 458-2) at 5 n.4.)

The Baldus Study drew a number of conclusions, including the following. First, the study determined that special circumstances were present in 91% to 95% of the actual first degree murder convictions entered during the time period applicable to the present case.⁵⁹ (Baldus Decl., Ex. 150 (Dkt. No. 458-2) at 14, Table 1; Pet'r's Brief re Narrowing (Dkt. No. 473) at 26-27.) Second, after determining which second degree murder and voluntary manslaughter convictions were "factually" first degree murder cases, the study concluded that 80% of the total "factual" first degree murder cases were death eligible during the time period relevant here.⁶⁰ The term "factual first degree murder case," as used in the Baldus Study, is somewhat confusing. It is used to refer to all actual first degree murder convictions and all second degree and voluntary manslaughter convictions that were determined by the Study to be "factually" first degree cases.⁶¹

59 The Baldus Study did not consider the effect of California law as of 1981, the relevant time period in the present case. The study examined the effects of California law during the Carlos window period discussed in the prior footnote and also as of 2008. The undersigned acknowledges that special circumstances were less likely to be found during the Carlos window period than they would have been in 1981 and that special circumstances were more likely to be found in 2008 than in 1981 because several new special circumstances had been added to the statute by 2008. Accordingly, petitioner's use of a range between these two figures to approximate the likely effect of the 1981 law appears to be appropriate. (See Dkt. No. 473 at 26-27.)

60 It appears that California's standards for first degree murder broadened over time. Because petitioner's crime preceded the Carlos window, and because the Carlos issues would not affect a first degree murder determination, the court assumes that the first degree murder statute in effect at the time of Carlos was closer to the 1978 statute in effect in 1981, the time of petitioner's crimes. Therefore, the court will look only to the Carlos window figure when considering the "factual" first degree murder cases.

61 In Part II of Table I, it appears that under the Carlos window, there were 18,737 "factual M1 cases." (Dkt. No. 458-2 at 14.) It is not clear from Table I whether that 18,737 total includes the first degree murder convictions. However, simple math shows that it must. Of the total of 27,453 cases in the study, 8,711 were first degree murder convictions, 7,900 were second degree murder convictions, and 10,842 were voluntary manslaughter convictions. The total number of non-first degree murder convictions was thus 18,742. Because that number is more than the total "factual M1 cases," the 18,737 total "factual M1 cases" reflected must also include the actual first degree murder convictions.

The Baldus Study drew two other major conclusions. Looking at studies of death eligibility rates in other states, the Baldus Study concluded that California's death eligibility was significantly greater than the death eligibility rates in every other state studied. (Baldus Decl., Ex. 150 (Dkt. No. 458-2) at ¶¶ 43-54.) Finally, after comparing the total number of "factual death eligible cases" and the actual number of cases in which death sentences were imposed, the Baldus Study concluded that only 4.6% of factual death eligible cases resulted in a death sentence in California. (Id. ¶ 61 & Table 5, Column B.) In other words, according to Professor Baldus, California's "death sentencing rate" during the period studied was 4.6%, which "is among the lowest in the nation and over two-thirds lower than the death sentencing rate in pre-Furman Georgia." (Id. at ¶ 71.)

Respondent argues that in claiming that California's statutory scheme fails to adequately narrow the application of the death penalty petitioner misconstrues the Eighth Amendment narrowing requirement, uses irrelevant and inflated statistics and relies upon studies which suffer numerous evidentiary flaws. Respondent also contends petitioner's claim in this regard is Teague-barred.

1. Legal Standards

The Eighth Amendment's narrowing requirement is the product of a series of Supreme Court decisions beginning with Furman v. Georgia, 408 U.S. 238 (1972). In Furman the Court held the Georgia and Texas capital sentencing statutes violated the Eighth and Fourteenth Amendments. However, there was little clear agreement among the justices on the underlying rationale for that decision. Five justices wrote separate concurring opinions. The opinions of Justices Stewart and White are considered some basis for a "majority" holding in Furman. See 408 U.S. at 401 (Burger, J., dissenting) (stating that while it is "not entirely clear" what the holding is, the Stewart and White opinions are the "two pivotal concurring opinions"). Both Justice Stewart and Justice White focused on the fact that the states' capital sentencing statutes made every murderer eligible for the death penalty but provided no guidance to assist juries in deciding when to impose that penalty. As a result, "the death penalty is exacted with great infrequency even for the most atrocious crimes and . . . there is no meaningful basis for distinguishing the few cases in which it is imposed from the many cases in which it is not." Id. at 313 (White, J., concurring). Justice Stewart similarly focused on the apparent arbitrariness of imposition of the death penalty:

These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual. For, of all the people convicted of rapes and murders in 1967 and 1968, many just as reprehensible as these, the petitioners are among a capriciously
selected random handful upon whom the sentence of death has in fact been imposed. My concurring Brothers have demonstrated that, if any basis can be discerned for the selection of these few to be sentenced to die, it is the constitutionally impermissible basis of race. But racial discrimination has not been proved, and I put it to one side. I simply conclude that the Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed.

Id. at 309-310 (footnotes and citations omitted).

The Supreme Court later explained that in Furman it had held that the death penalty "could not be imposed under sentencing procedures that created a substantial risk that it would be inflicted in an arbitrary and capricious manner." Gregg, 428 U.S. at 188. Rather, "where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action." 428 U.S. at 189 (opinion of Stewart, Powell, and Stevens, JJ.). In his concurring opinion in Gregg, Justice White described how a constitutionally permissible death penalty statute should work:

As the types of murders for which the death penalty may be imposed become more narrowly defined and are limited to those which are particularly serious or for which the death penalty is peculiarly appropriate as they are in Georgia by reason of the aggravating-circumstance requirement, it becomes reasonable to expect that juries even given discretion not to impose the death penalty will impose the death penalty in a substantial portion of the cases so defined. If they do, it can no longer be said that the penalty is being imposed wantonly and freakishly or so infrequently that it loses its usefulness as a sentencing device.

Id. at 222-23. The Court in Gregg upheld Georgia's revised death penalty statute which, at a separate penalty phase, required a jury to find at least one of ten statutory aggravating factors to be true before it imposed a death sentence. Id. at 198-205.

Thereafter, the Supreme Court examined Georgia's aggravating circumstances and held that each must "genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder." Zant, 462 U.S. at 877. The Court concluded that each aggravating circumstance must "provide a principled basis for distinguishing" the petitioner's case "from the many other murder cases in which the death penalty was not imposed under the statute." 462 U.S. at 878 n. 16.

Subsequently, the narrowing principles described by the Court in Zant were applied to Louisiana's death penalty sentencing statute:

To pass constitutional muster, a capital sentencing scheme must "genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder." Under the capital sentencing laws of most States, the jury is required during the sentencing phase to find at least one aggravating circumstance before it may impose death. By doing so, the jury narrows the class of persons eligible for the death penalty according to an objective legislative definition.⁶²

Lowenfield v. Phelps, 484 U.S. 231, 244 (1988) (internal citations omitted).

62 Respondent repeatedly argues that adequate narrowing of death eligible defendants is accomplished in a number of ways, including through the exercise of the discretion by local prosecutors in charging crimes and special circumstances. Respondent's definition of narrowing is clearly too expansive. As defined by the Supreme Court in Lowenfield, narrowing, for purposes of Eighth Amendment jurisprudence, must be accomplished through "objective legislative" standards. Lowenfield, 484 U.S. at 244.

Here, petitioner points out that the Ninth Circuit Court of Appeals has twice invalidated capital punishment schemes for failure to comply with the mandate of Furman. In United States v. Harper, 729 F.2d 1216 (9th Cir. 1984), the court considered the death penalty provisions of the Espionage Act, former 18 U.S.C. § 794. The Ninth Circuit in Harper, however, did not address the narrowing of a death eligible pool of defendants under the statute at issue -- the issue raised in the present case. Instead, the court held that the Espionage Act's failure to provide any legislated guidelines to direct the fact-finder's discretion in imposing the death penalty violated the requirements of Furman and the Eighth Amendment. 729 F.2d at 1224-26.

The second case on which petitioner relies also does not persuasively support his claim for habeas relief. In United States v. Cheely, 36 F.3d 1439, 1442 (9th Cir. 1994), the court did examine a statute's narrowing of the class of those eligible for the death penalty. At issue in Cheely was a federal statute that authorized imposition of the death penalty for mailing explosives. The Ninth Circuit found the death penalty authorization too broad because, by definition, it made one eligible for the death penalty even if guilty of no more than involuntary manslaughter. 36 F.3d at 1443. In so holding, the Ninth Circuit noted that the Supreme Court had required that a mental state of at least reckless indifference to human life during the commission of a felony is necessary for imposition of the death penalty. Id. at 1443, n. 9 (citing Tison v. Arizona, 481 U.S. 137, 157-58 (1987)). The court found that the statute's overbreadth, along with the lack of guidance provided to a sentencing jury, created the "potential for impermissibly disparate and irrational sentencing." Id. at 1444. In so holding the Ninth Circuit observed that:

When juries are presented with a broad class, composed of persons of many different levels of culpability, and are allowed to decide who among them deserves death, the possibility of aberrational decisions as to life or death is too great.

Id. at 1445. Cheely's holding is therefore inapposite here: petitioner is not arguing that the California statutory scheme is so broad that it encompasses those for whom the death penalty is legally inappropriate.

Respondent, on the other hand, argues that the Ninth Circuit has twice rejected precisely the same challenge petitioner makes here.⁶³ As with petitioner's argument, the cases relied upon by respondent are not on point. Petitioner's claim presented in this case is significantly different than those considered by the Ninth Circuit in Karis, 283 F.3d at 1141 n. 11 and Mayfield, 270 F.3d at 924. In both of those cases, the court ruled without considering any available evidentiary support. Because those decisions did not involve the consideration of the type of evidence introduced in support of petitioner's claim here, the Ninth Circuit's decisions Karis and Mayfield are distinguishable and do not resolve petitioner's narrowing claim.⁶⁴

63 Respondent also relies upon the Supreme Court's decision in Pulley v. Harris, 465 U.S. 37, 53 (1984) in which the Court held that California's 1977 statute "limits the death sentence to a small subclass of capital-eligible cases." Because petitioner's Claim 2 specifically challenges the changes made to California's capital sentencing scheme by the 1978 Briggs Initiative, the decision in Pulley is not on point and does not control. California's 1977 statute included far fewer special circumstances than the 1978 statute. Pulley, 465 U.S. at 51, n.13 (noting that the 1978 statute "greatly expanded" the category of special circumstances). While respondent states that the decision in Brown v. Sanders, 546 U.S. 212 (2006) "conclusively confirms the correctness of Respondent's position," that case too is not on point. In Brown, the Court considered the invalidation of two of four special circumstances. The Court did not, as respondent claims here, state that "special-circumstance findings 'are sufficient to satisfy Furman's narrowing requirement.'" (Dkt. No. 476 at 8:3-4.) Rather, in Brown the Court merely stated that the two remaining special circumstances in that case were "sufficient to satisfy Furman's narrowing requirement." 546 U.S. at 224.

64 See Frye v. Calderon, No. CIV S 99-628 LKK/JFM, Jan. 10, 2003 Order (Dkt. No. 97) (holding that the decision in Karis does not bar a petitioner's presentation of a narrowing claim).

To summarize, the goal of the Eighth Amendment's narrowing requirement is to limit the possibility of arbitrary and capricious imposition of the death penalty. States may accomplish this by enacting objective legislative standards to limit the pool of those eligible for the death penalty in a way that reasonably justifies imposition of a more severe sentence on them. The sentencer may then exercise discretion to determine if that sentence should be imposed in a particular case.⁶⁵ If the death eligible pool is so large that it includes persons with vastly different levels of culpability, then the discretionary decision-making at the selection stage is not sufficiently limited. Without sufficiently objective limits with respect to when that ultimate sentence is appropriately imposed, the system risks arbitrary and capricious application of the death penalty upon those who are not necessarily the most deserving of the greatest punishment.

65 The final selection process necessarily involves greater discretion because it requires "particularized consideration of relevant aspects of the character and record of each convicted defendant" (Abdul-Kabir v. Quarterman, 550 U.S. 233, 247 (2007) (quoting Woodson v. North Carolina, 428 U.S. 280, 303 (1976)), and consideration of "any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." Abdul-Kabir, 550 U.S. at 247-48 (quoting Lockett v. Ohio, 438 U.S. 586, 604 (1978)).

2. Discussion

As described above, at the time of petitioner's crime, California's first degree murder statute appeared to be quite broad, listing twenty-seven special circumstances.⁶⁶ Many of those special circumstances mirrored the first degree murder categories. For example, many categories of first degree felony/murder were also special circumstances. Cal. Penal Code § 190.2(a)(17). When comparing the first degree murder categories with the list of special circumstances, it is therefore difficult to imagine many first degree murders that would not include a special circumstance.⁶⁷ Indeed, the broad coverage of California's special circumstances was noted by Justice Blackmun in his dissent in Tuilaepa v. California, 512 U.S. 967 (1994), wherein he questioned the "constitutional adequacy of California's eligibility process" because its then twenty special circumstances created "an extraordinarily large death pool." 512 U.S. at 994. However, Justice Blackmun also noted that the petitioner in Tuilaepa had not mounted a challenge to the special circumstances and the Supreme Court was not therefore called upon to determine whether they sufficiently narrowed application of the death penalty under the holding in Zant. Id.

66 See fn. 54, above.

67 Professor Gerald Uelmen, who, among other positions, the Executive Director of the California Commission on the Fair Administration of Justice, which was charged with examining the administration of California's death penalty law, testified on behalf of petitioner in these proceedings. (Ex. 138 (Dkt. No. 442-2) at 1230-33.) Specifically, Professor Uelmen testified that he could not think "of a case that we could get a first degree conviction in California that we couldn't find a special circumstance." (Id. at 1237.) Professor Shatz and attorney Rivkind argue that only seven categories of first degree murderers are not automatically death-eligible in California. and that includes rarely charged categories of crimes, such as murder of a firefighter or murder of a judge. Requiem for Furman, 72 N.Y.U. L. Rev. at 1318-19 & n. 199, 1324-26; (see also Decl. of Steven Shatz, Ex. 134 (Dkt. No. 442-1) at 3). In his declaration, Professor Shatz increases that number by one, stating that there are "eight fact situations where a defendant could theoretically have been guilty of first degree murder and not have been death-eligible." (Shatz Decl., Ex. 134 (Dkt. No. 442-1) at ¶ 7.)

Despite these circumstances, the undersigned concludes that petitioner is not entitled to relief with respect to his narrowing claim here. In short, in these habeas proceedings petitioner has failed to prove that California's statutory scheme violates the Eighth Amendment. Putting aside the issues of whether or not petitioner seeks application of a new rule of law in violation of the holding in Teague, whether an Eighth Amendment narrowing violation can be proved by making a mathematical showing, and whether petitioner's experts' studies suffer from such serious evidentiary problems so that they are entitled to little weight under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the undersigned finds four significant deficiencies with petitioner's narrowing claim as presented here. First, petitioner has not shown the relevance of the history of the Briggs Initiative to the issue presented by his narrowing claim. Second, petitioner's attempt to prove mathematically that California's death penalty scheme is arbitrary, fails to satisfy even the test petitioner himself establishes for determining the merit of his claim. Third, the studies petitioner has presented to this court draw conclusions from manufactured comparisons that do not withstand scrutiny. And, fourth, in his argument that almost every first degree murder in California would include special circumstances, petitioner never addresses or explains why or how California's division of intentional murder into degrees does not contribute to narrowing the death-eligible class of criminal defendants.

a. Relevance of the Briggs Initiative's History

Analysis of legislative history is typically used to discern the meaning of a statute that is not clear on its face. See Mohamad v. Palestinian Authority, ___ U.S. ___, ___, 132 S. Ct. 1702, 1709 (2012) ("'[R]eliance on legislative history is unnecessary in light of the statute's unambiguous language.'") (quoting Milavetz, Gallop & Milavetz, P.A. v. United States, 559 U.S. 229, 236 n. 3 (2010)). Similarly, California courts have recognized that the history of passage of an initiative may also be relevant where the language of the ballot initiative is unclear. See California Redevelopment Assn. v. Matosantos, 53 Cal. 4th 231, 279 (2011) ("[U]nless the text [of an initiative] is ambiguous and supports multiple interpretations," courts must rely on the language of the text and have no need to look to its history.) Here, petitioner attempts to use the history of the Briggs Initiative for a different purpose, attempting to show the scope of the resulting statute violates the Constitution. However, in doing so petitioner fails to allege that the language of the statute, or the statute itself, is vague.

In fact, petitioner does not even strongly argue the relevance of the initiative's history to his Eighth Amendment challenge to California's death penalty scheme. In his opening brief, petitioner merely cites a handful of decisions for the proposition that "ballot arguments and analysis presented to the voters in connection with an initiative are helpful in determining the meaning of the initiative and the intent of the voters." (Dkt. No. 473 at 9:4-8.) However, petitioner has not demonstrated that the meaning of the Briggs Initiative has been placed at issue in these proceeding by his narrowing claim. Further, nothing in the cases cited by petitioner suggests any relevance of the initiative's history to the issues presented by that claim. See California Democratic Party v. Jones, 530 U.S. 567, 570 (2000) (mentioning the promotions for an initiative in the course of describing its history); Valeria v. Davis, 307 F.3d 1036, 1041 (9th Cir. 2002) (a ballot proposition's history is directly relevant to the equal protection analysis of a facially neutral law to determine if it is "motivated by discriminatory racial purpose"); Kennedy Wholesale, Inc. v. State Board of Equalization, 53 Cal. 3d 245, 250 (1991) (observing that a section of the California Constitution created by Proposition 13 is "ambiguous in context" and it is therefore "appropriate to consider indicia of the voters' intent other than the language of the provision itself); People v. Frierson, 25 Cal. 3d 142, 185 (1979) (court looks to the intent behind adoption of a constitutional amendment to determine the meaning of that amendment). Again, petitioner does not allege that California's 1978 death penalty law is ambiguous, as was the statute in Kennedy; or that one requirement of the Eighth Amendment narrowing claim analysis is determining the intent behind the law's passage, as in Valeria. Nor are the parties in this proceeding in conflict regarding the meaning of the statute in question, as the parties were in Frierson.⁶⁸

68 Moreover, as noted by one state appellate court, statements by initiative proponents that revision of the death penalty statute was necessary to make the death penalty applicable to every murderer were "merely hyperbole." Domino v. Superior Court, 129 Cal. App. 3d 1000, 1010 (1982).

In his reply brief, petitioner cites two cases in support of the conclusory suggestion: "when an initiative measure is motivated by such deliberate intent to violate the Constitution, that intent should be considered in assessing its validity." (Dkt. No. 479 at 3:25-27.) However, the cases petitioner cites for this proposition do not support its application to the present case. Both of the decisions relied upon by petitioner in this regard, like Valeria, involved equal protection challenges in which examining the motivation behind facially neutral laws was a required aspect of the legal analysis. Washington v. Seattle School District, No. 1, 458 U.S. 457, 471 (1982) (Court examined the motivations behind passage of a facially neutral busing law); Reitman v. Mulkey, 387 U.S. 369, 380-81 (1967) (Court considered whether passage of a constitutional amendment was motivated by racial factors and resulted in racial discrimination). Having not put the meaning of the 1978 law at issue, petitioner cannot put the intention of its drafters in question either.

For these reasons, the undersigned concludes that petitioner's lengthy exposition on the history of the Briggs Initiative has no apparent relevance to the issues raised by his claim that California's 1978 death penalty statute failed to adequately narrow application of the death penalty in violation of his right to be free from arbitrary and capricious sentencing under the Eighth Amendment.

b. Apples and Oranges

The second prong of petitioner's argument with respect to his Claim 2 hinges on a "death sentencing ratio," upon which, he claims, the Supreme Court in Furman relied.⁶⁹ Two dissenting justices mentioned that about 15 to 20% of murder defendants at that time were sentenced to death. The statutes the Supreme Court considered in Furman made all murderers eligible for the death penalty. Therefore, the ratio was based on a comparison of all death-eligible defendants to all those sentenced to death.

69 As respondent points out, it is not at all clear that this "death sentencing ratio" was relied upon by any of the justices in the Furman majority. In fact, that ratio was cited only by Justices Burger and Powell in their dissents. Justice Burger cited the ratio to counter the "unwarranted hyperbole" that the rate of imposition of the death penalty was "freakishly rare." Furman, 408 U.S. at 386 n. 11. Justice Powell cited the ratio to contradict the petitioners' argument that the death penalty was imposed with such infrequency that it could be inferred that it was being "virtually unanimously repudiated by the conscience of contemporary society." Id. at 434-35 & n. 19, 441. See also Gregg v. Georgia, 428 U.S. 153, 182 & n. 26 (1976) (plurality opinion citing estimate that prior to Furman less than 20% of those convicted of capital murder were sentenced to death in its discussion of whether the reluctance of juries to impose the death penalty indicated a per se rejection of capital punishment) None of the justices in the Furman majority mentioned this ratio. Indeed, statements made by the majority indicate that the justices considered the rate of imposition of the death sentence to be much lower. For instance, Justice Stewart stated that the death penalty was so rarely applied that it was like being "struck by lightning." 408 U.S. at 309. While Justice Stewart obviously was not being literal, it is worth noting that, according to the National Weather Service, the odds of being struck by lightning are a far cry from a 15 to 20% death sentencing rate. See http://www.lightningsafety.noaa.gov/medical.htm (chance of being struck by lightning in a lifetime is 1 in 10,000). That death sentencing rate also does not appear to be consistent with Justice Brennan's comment in Furman that only a "minute fraction" of those eligible for the death penalty were so sentenced. 408 U.S. at 293. The Merriam-Webster dictionary defines the adjective "minute" as "very small" and "infinitesimal." See http://www.merriam-webster.com/dictionary. Again, 15 to 20% does not strike the undersigned as an infinitesimal percentage. Here, respondent also makes a supported argument that the frequency of imposition of the death penalty is not relevant to petitioner's claim. At least one court has held that the narrowing requirement is "not based on the frequency with which the death penalty was sought or imposed. Rather, the primary emphasis of the Court's death penalty jurisprudence has been the requirement that the discretion exercised by juries be guided so as to limit the potential for arbitrariness." United States v. Sampson, 486 F.3d 13, 23 (1st Cir. 2007). In any event, for purposes of the undersigned's discussion in the text, the court assumes that the death sentencing ratio is relevant to the Furman majority decision.

Petitioner's argument with respect to this prong is fatally flawed because the comparison he uses is not the same as the one that appeared in Furman. In all the studies petitioner relies upon, a comparison is made between what petitioner refers to as "factual special circumstance" cases and death sentences that were actually imposed. Nowhere, at least nowhere that this court can discern, does petitioner provide a ratio comparing the same figures as the Furman ratio. To have made the same comparison as the Supreme Court did in Furman, petitioner would have to study how California has, in fact, applied its death penalty. That is what was done by the Court in Furman by looking at those criminal defendants who had been convicted of murder, and were therefore death eligible, and those who had actually been sentenced to death. In order to pursue his narrowing claim here, the proper comparison for petitioner to make would have been between those defendants death eligible because they had been convicted of both first degree murder with a special circumstance finding and those actually sentenced to death. That is not what petitioner's experts did according to the evidence presented to this court. Here, Professor Baldus testified that his study did not examine how California in fact applies its death penalty. (Ex. 154 (Dkt. No. 476) at 1599:1-3, 11-14.) Rather, he testified that, "[w]e were interested only in the legislative decision," not in "the application of the statute by decision makers." (Id.) In light of such testimony, petitioner has not adequately explained why his death penalty ratio is appropriately measured against that addressed in Furman. In short, because petitioner is comparing apples to oranges, his argument for relief with respect to his narrowing claim loses one of its primary underpinnings.

c. Mixing Facial & Applied Challenges to the Statute

A related deficiency with petitioner's argument in support of his narrowing claim is that he therein mixes facial, or more precisely potential, and applied challenges to California' death penalty statute.⁷⁰ The ratios derived in each study relied upon by petitioner compared a possible universe of death eligibility, the "factual" death-eligible cases, with the number of actual death sentences imposed by California juries. Professor Shatz included in his total of death-eligible defendants first degree murder cases in which he felt a special circumstance could have been found. Professors Baldus and Woodworth did the same and made their death-eligible class even larger by also including voluntary manslaughter and second degree murder cases which they felt posed sufficient facts to have been first degree murder cases. Of course, because cases in which a jury did not find a special circumstance never proceeded to a penalty phase, the imposition of a death sentence was not possible in such cases. Nonetheless, against this expanded potential death-eligible class of cases, both studies relied upon by petitioner measured the actual death sentences imposed. This comparison results in a falsely low death sentencing rate. To have created a realistic picture of the potential of California's death penalty scheme, petitioner should have measured the number of possible death-eligible defendants against the number of possible death sentences.

70 Respondent makes much of this "as applied" vs. "facial" challenge to the statute. In part, he does so due to his contention that the Ninth Circuit's decisions in Karis and Mayfield, which examined California's death penalty statute on its face, resolve the claim presented by petitioner here. As discussed above, the undersigned does not find respondent's reasoning regarding the precedential nature of those cases in connection with petitioner's narrowing claim to be persuasive. Moreover, the "facial" and "applied" terms do not fit easily here given petitioner's claim. Petitioner's studies take the language of the statute and "apply" it to make determinations about what could have been found - not about what was found. While perhaps more than a facial challenge to the statute, petitioner's claim is not one based upon the actual application of the statute either.

Of note, Professor Baldus does draw conclusions based on the breadth of potential death eligibility in California, without also referring to the number of death sentences actually imposed. He concludes that over 90% of all defendants convicted of first degree murder in California could have been death eligible and that over 80% of all factual first degree cases could have been death eligible. This is strong evidence of the potentially vast reach of the California death penalty statute. Yet, the legal framework for considering petitioner's Eighth Amendment narrowing claim does not anticipate this sort of argument. Petitioner has presented no precedent supporting an examination of the statute in this way. In Furman, the Supreme Court looked to the number of murder convictions, in other words, the number of criminal defendants who were in fact death eligible because they had been convicted. The Court did not examine the applicable statutes to determine how many other defendants could have been convicted of murder and were potentially death-eligible. Absent such precedent, the undersigned cannot extend the reasoning of the Supreme Court in Furman into this uncharted territory.

d. Narrowing by Dividing Murder into Degrees

Respondent repeatedly points out that petitioner has incorrectly focused only on special circumstances as accomplishing the narrowing of death eligible defendants required by the Eighth Amendment. According to respondent, California's division of intentional homicide into degrees represents the first step of the required narrowing process. In this regard, Professor Baldus's study appears to demonstrate that narrowing does occur through the separation of intentional homicide into degrees. Of the 27,453 total intentional homicides in California from 1978 to 2002, convictions for voluntary manslaughter, second degree murder, and first degree murder were, roughly, equally divided. (Baldus Decl., Ex. 150 (Dkt. No. 458-2) at ¶ 12 (32% of the cases resulted in first degree murder convictions, 29% in second degree murder convictions, and 39% in voluntary manslaughter convictions).)

Petitioner never addresses this point in any substantial way nor does his counsel put it into any persuasive context. Petitioner simply provides the court no framework to consider the extent to which California's division of murder into degrees does, or does not, "genuinely narrow the class of persons eligible for the death penalty and . . . reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder." Zant, 462 U.S. at 877. Nor does petitioner analyze the statutory language to argue the breadth of first degree murder liability under California law.⁷¹ Petitioner's attempts to frame his narrowing claim as involving only the special circumstances identified by the California death penalty scheme is not well taken. His failure to address the import of California's division of murder into degrees is fatal to his attempts to show California's statutory scheme violates the Eighth Amendment.

71 Petitioner does briefly explain the wide coverage of the felony/murder doctrine in California. (Dkt. No. 473 at 15-16.) Further, he discusses the expansion of first degree murder liability in 1990 and thereafter. (Id. at 18-20.) This court is limited, however, to examining the California statute as it existed at the time of the crimes in 1981 for which petitioner was convicted.

3. Conclusion

In his concurrence in Gregg, Justice White described a constitutional system of capital punishment as one that narrows the "types of murders for which the death penalty may be imposed" to those "which are particularly serious or for which the death penalty is particularly appropriate." Furman, 428 U.S. at 222. Justice White noted that it would be reasonable to expect that juries given the discretion to impose a death sentence would do so "in a substantial portion of the cases so defined." Id. In this federal habeas proceeding petitioner has succeeded in establishing that the class of death-eligible defendants in California is potentially very large. However, petitioner has not borne his burden of proving that this potentially large class of death eligible defendants under California's statutory scheme violates the Eighth Amendment. Accordingly, federal habeas relief as to petitioner's narrowing claim should be denied.

II. Non-Evidentiary Hearing Claims

A. As Applied Challenge to California's Lying in Wait Special Circumstance

Under California law, murder perpetrated "by means of . . . lying in wait" is one type of first degree murder. Cal. Penal Code § 189. As discussed in detail above, California law also identifies and defines various "special circumstances" which, if proven, make the penalty for the first degree murder in question "death or confinement in the state prison for a term of life without the possibility of parole." Cal. Penal Code § 190.2(a). One of the special circumstances alleged in petitioner's case was that "[t]he defendant intentionally killed the victim while lying in wait." Cal. Penal Code § 190.2(a)(15). The jury at petitioner's trial found him

guilty of first degree murder 'under the felony murder rule,' i.e., homicide 'as a result' of the actual or attempted commission of robbery with specific intent. It also found that [petitioner] had committed first degree murder 'other than under the felony murder rule,' based on instructions defining premeditated murder and murder by lying in wait.

People v. Webster, 54 Cal. 3d at 444. Thus, the jury at his trial found petitioner eligible for the death penalty by finding two alleged special circumstances to be true: commission of murder while lying in wait and murder while engaged in the commission or attempted commission of robbery. Id. at 423.

Petitioner makes two distinct challenges to California's lying in wait special circumstance: (1) California's lying in wait special circumstance fails to provide a meaningful and principled basis for distinguishing capital and non-capital cases in violation of the Eighth Amendment; and (2) the unforeseeable expansion of the lying in wait special circumstance to include incidents of non-concealment violated due process. The parties agree the latter challenge has already been determined in this action. As to that claim, the assigned District Judge granted summary adjudication in favor of petitioner and entered partial judgment with respect to this claim. (Dkt. Nos. 176 & 201.) As noted above, respondent appealed that partial judgment and the Ninth Circuit reversed. See Webster v. Woodford, 369 F.3d 1062 (9th Cir. 2004). Accordingly, petitioner's claim that the expansion of California's lying in wait special circumstance to include incidents of non-concealment violated his right to due process has already been resolved in respondent's favor.

Respondent now contends that petitioner's first challenge to California's lying in wait special circumstance, brought as an Eighth Amendment claim, has also been previously decided or, alternatively, is a new claim for which petitioner has not properly sought leave to amend his federal habeas petition to include. The undersigned finds neither of these arguments to be persuasive.

Petitioner's Eighth Amendment challenge to the lying in wait special circumstance is not a new claim in these habeas proceedings. In the findings and recommendations addressing the parties' cross-motions for summary judgment, the undersigned discussed petitioner's two separate challenges to California Penal Code § 190.2(a)(15) and, as to his challenge based on Eighth Amendment grounds, specifically recommended that respondent be denied summary adjudication with respect to that claim because the "issue requir[ed] further development." (Dkt. No. 176 at 67, 140-41) (recommending the granting of summary judgment in favor of respondent as to petitioner's claims 2G and 2H in which petitioner challenged that provision on due process grounds but recommending denial of respondent's motion as to Claim 4F in which petitioner challenged the statute on Eighth Amendment grounds). Indeed, respondent previously acknowledged that petitioner's Claim 4F remained unresolved and at issue in this habeas proceeding. (Respondent's Supp. Status Rep. (Dkt. No. 423) at 2 (listing claim 4F as "at-issue").) Accordingly, below the undersigned will address the merits of this claim.

At the outset, petitioner concedes that his claim for relief in these proceedings is now limited to an as applied challenge in light of the Ninth Circuit's decision in Morales v. Woodford, 388 F.3d 1159, 1174-75 (9th Cir. 2004), which rejected an Eighth Amendment facial challenge to § 190.2(a)(15). In Morales, the Ninth Circuit held that California's lying in wait special circumstance, considered on its face, adequately narrows the class of first degree murders which subject the defendant to the death penalty so as to satisfy the Eighth Amendment. Id. at 1173-78; see also Bradway v. Cate, 588 F.3d 990, 992-93 (9th Cir. 2009) (holding that lying in wait special circumstance supporting enhanced sentence of life without the possibility of parole was adequate to survive a vagueness challenge). Since then, however, the Ninth Circuit addressed on the merits a petitioner's "as applied" challenge to that same statute. See Edwards v. Ayers, 542 F.3d 759, 767 (9th Cir. 2008). As explained below, petitioner's claim fails under Edwards.

Petitioner argues that the Eighth Amendment was violated in his case because there was "no meaningful distinction at all between lying in wait as a theory of first degree murder and lying in wait as a special circumstance." (Dkt. No. 433 at 7.) According to petitioner, in light of the jury instructions given in his case, the lying in wait special circumstance failed to adequately narrow the class of murderers subject to the death penalty as is constitutionally required. Respondent counters that binding Ninth Circuit authority makes clear that the jury instructions given in petitioner's case adequately distinguished first degree murder lying in wait from special circumstance lying in wait.⁷²

72 Respondent also argues the Supreme Court's opinion in Lowenfield v. Phelps, 484 U.S. 231 (1988) compels rejection of petitioner's claim. The question presented in Lowenfield was whether the fact that an aggravating circumstance found at the penalty phase was identical to an element of the underlying crime violated the Eighth Amendment's narrowing requirement. The Supreme Court held that the Louisiana statutory scheme at issue there accomplished narrowing at the guilt phase through the definition of death-eligible murder. Id. at 246. Thus,

[t]he fact that the sentencing jury is also required to find the existence of an aggravating circumstance in addition is no part of the constitutionally required narrowing process, and so the fact that the aggravating circumstance duplicated one of the elements of the crime does not make this sentence constitutionally infirm.

The Ninth Circuit has explained the facial distinction between the lying in wait element of first degree murder and the lying in wait special circumstance under California law as follows:

[L]ying in wait as a special circumstance, unlike lying in wait as a first-degree factor, requires all three elements mentioned above - concealment of purpose, watching and waiting, and surprise - and lying in wait as a special circumstance requires that the murder be committed while lying in wait. That is, the special circumstance has the requirement that there be no gap in time between the murder and the period of watching and waiting. This is not required for lying in wait as a substitute for premeditation and deliberation. Thus, lying in wait as a special circumstance is more difficult to satisfy than is lying in wait as an aggravator that makes a killing first degree murder.

Morales, 388 F.3d at 1177. In that case, the Ninth Circuit concluded that the lying in wait special circumstance is not the "functional equivalent" of lying in wait for first-degree murder. Id. Subsequently, the Ninth Circuit emphasized that the lying in wait special circumstance is also "distinguishable" from first degree murder itself because it requires the specific intent to kill, whereas first degree murder by lying in wait does not. Bradway, 588 F.3d at 992 (considering the amended § 190.2(a)(15) special circumstance, which contained the language "by means of lying in wait" like that used in defining first degree murder, as opposed to "while lying in wait").

In Edwards, the Ninth Circuit considered an as applied challenge to California's lying in wait special circumstance. The petitioner there argued that the lying in wait special circumstance instruction given at his trial was so broad that it could encompass almost all first degree murders and, therefore, failed to adequately narrow the death-eligible class. Edwards, 542 F.3d at 767. The Ninth Circuit disagreed, holding that the instruction given in that case differed in no meaningful way from the instruction upheld by the court in Morales. Id. at 767-68. The court in Edwards concluded that the jury instruction given in that case covered the three elements of special circumstance lying in wait set out in Morales: "(1) a substantial period of waiting and watching for an opportune time to act; (2) concealment of purpose; and (3) immediately thereafter a surprise attack on an unsuspecting victim from a position of advantage." Id. at 767 (citing Morales, 388 F.3d at 1175).

In the present case the same is true. The relevant instruction given to petitioner's jury accurately stated the statutory requirements and made the distinctions that the Ninth Circuit found critical in ensuring that only a narrower class of first degree murder defendants are found eligible for imposition of the death penalty. In this regard, petitioner's jury was instructed on first degree murder as follows:

Murder which is immediately preceded by lying in wait is murder of the first degree.
The term "lying in wait" is defined as a waiting and watching for an opportune time to act, together with a concealment by ambush or some other secret design to take the other person by surprise. The lying in wait need not continue for any particular period of time provided that its duration is such as to show a state of mind equivalent to premeditation or deliberation.
To constitute murder by means of lying in wait there must be, in addition to the aforesaid conduct by the defendant, an intentional infliction upon the person killed of bodily harm involving a high degree of probability that it will result in death and which shows a wanton disregard for human life.

(CT at 1474.) In addition, petitioner's jury was instructed on the special circumstance of lying in wait as follows:

To find that the special circumstance, referred to in these instructions as murder while lying in wait, is true, each of the following facts must be proved:
1. That the defendant intentionally killed the victim, and
2. That the murder was committed while defendant was lying in wait as was defined in these instructions.

(CT at 1504.)

These jury instructions adequately addressed the three elements of the lying in wait special circumstance as set out in the decision in Morales. Petitioner makes much of the absence of a specific reference to a "substantial" period of watching and waiting in the lying in wait instructions given to his jury. That argument is misplaced however. As the Ninth Circuit stated in Edwards:

Edwards is correct that the lying in wait instruction given at his trial did not include the words "a substantial period" of waiting and watching. As the California Supreme Court noted, this is not surprising as Edwards' trial pre-dated the Morales opinion. [citation omitted.] Edwards' jury was instructed, however, that the
period of waiting and watching had to be of sufficient duration to prove beyond a reasonable doubt the elements of waiting, watching, and concealment, and that the defendant intended to kill the victim during the period of lying in wait.

542 F.3d at 767.

Moreover, the concealment element was specifically referenced in the instructions given to petitioner's jury. The instructions satisfied the temporal requirement by requiring the jury to find that the murder was committed "while" lying in wait. Finally, the instructions satisfactorily distinguished first-degree murder lying in wait from special-circumstance lying in wait. They informed the jury that, unlike lying in wait as a theory of first degree murder, to find the special circumstance of lying in wait, the jury was required to find that the defendant acted with the specific intent to kill. See Webster, 54 Cal. 3d at 448 ("On the other hand, the jury was told that it could not find the special circumstance of murder while lying in wait unless the defendant "intentionally killed" the victim."); see also Bradway, 588 F.3d at 992 (noting that California courts have concluded that "the special circumstance remains distinguishable because it still requires the specific intent to kill, whereas first degree murder by lying in wait does not"). The instructions given at petitioner's trial also advised the jury that, to find the special circumstance it had to find a different temporal requirement: that the murder was committed "while " petitioner was lying in wait. Webster, 54 Cal. 3d at 449 ("The special circumstance instruction set forth the statutory requirement that the murder was committed 'while' the defendant was lying in wait."); see also Morales, 388 F.3d at 1177 ("But that does not mean that the death-penalty circumstance, particularly with its requirement that the murder be committed while the killer lies in wait, is the 'functional equivalent' of first-degree murder."). The first degree murder instruction given at petitioner's trial correctly required only that the conduct constituting lying in wait "immediately precede" the murder and thereby permits a gap in time that the special circumstance does not. Morales, 388 F.3d at 1177. Because these distinctions were made clear, pursuant to controlling Ninth Circuit authority, it cannot be said that the special circumstance fails to narrow the class of murders subject to the death penalty. See Bradway, 588 F.3d at 992; Edwards, 542 F.3d at 766-68; Morales, 388 F.3d at 1174-78.

Petitioner also relies on the differences in the lying in wait jury instructions given in Edwards and those given in his case. (Dkt. No. 433 at 8, 10, appendix.) His arguments in this regard miss the mark. In neither Edwards nor Morales did the Ninth Circuit establish minimum constitutional requirements with respect to California's lying in wait jury instructions. In Edwards the court made it clear that for purposes of assessing an Eighth Amendment challenge to the lying in wait jury instructions what was important was not the "differences in the words" used in the particular instruction but rather whether the required "essential elements" were adequately addressed by the instructions given. Id. at 768. Because the essential elements with respect to the jury's lying in wait special circumstances finding were adequately addressed in the instructions given at petitioner's trial, the undersigned cannot find any constitutional flaw in those challenged instructions.

Accordingly, for reasons set forth above, the undersigned recommends that petitioner be denied federal habeas relief with respect to his Claim 4F in which he challenges the lying in wait special circumstance as applied in his case in light of the jury instructions given at his trial.

B. Instructional Error in the Penalty Phase

Petitioner also claims that penalty phase jury instructions given at his trial unconstitutionally restricted the jury's exercise of sentencing discretion. Specifically, petitioner argues that it is reasonably likely that the mandatory language of CALJIC 8.84.2 which was given at his trial misled the jury into believing that a death verdict was mandatory if they found that the aggravating circumstances outweighed the mitigating circumstances. (Pet. (Dkt. No. 73) at 66-67, 123-24.) Petitioner argues that the instruction as given "fettered" the jury's sentencing discretion. (Id. at 66.)

Petitioner's jury was instructed at the conclusion of the penalty phase trial as follows:

After having heard all of the evidence and after having heard and considered the arguments of counsel, you shall consider, take into account, and be guided by the aggravating and mitigating circumstances upon which you have been instructed. If you conclude that the aggravating circumstances outweigh the mitigating circumstances, you shall impose a sentence of death. However, if you determine that the mitigating circumstances outweigh the aggravating circumstances, you shall impose a sentence of confinement in the state prison for life without the possibility of parole.

(CT 1658; RT 5536.) This instruction was in keeping with California's standard instruction at the time, former CALJIC No. 8.84.2 (1979 rev.). That standard instruction, in turn, was taken directly from the statutory language of California Penal Code § 190.3.⁷³ See People v. Weaver, 26 Cal. 4th 876, 984-85 (2001).

73 At the time of petitioner's trial California Penal Code § 190.3 provided:

After having heard and received all of the evidence, and after having heard and considered the arguments of counsel, the trier of fact shall consider, take into account and be guided by the aggravating and mitigating circumstances referred to in this section, and shall impose a sentence of death if the trier of fact concludes that the aggravating circumstances outweigh the mitigating circumstances. If the trier of fact determines that the mitigating circumstances outweigh the aggravating circumstances, the trier of fact shall impose a sentence of confinement in state prison for a term of life without the possibility of parole.

Petitioner further contends that this presumption in favor of the imposition of the death penalty if the jury finds the aggravating circumstances outweigh the mitigating circumstances is insupportable under California law, which charges the jury with the broad discretion to decide whether death is the appropriate punishment in light of all the evidence, even in the absence of mitigating evidence. See People v. Duncan, 53 Cal. 3d 955, 979 (1991). Petitioner argues that the instruction violated his due process rights by depriving him of a state-law procedural safeguard, i.e., the right not to be sentenced to death unless the jury understands its ultimate responsibility to determine the appropriate sentence.

1. Legal Standards for Review of Instructional Error

In general, a challenge to jury instructions does not state a federal constitutional claim. Estelle, 502 U.S. at 67-68; Engle, 456 U.S. at 119; Gutierrez, 695 F.2d at 1197. In order to warrant federal habeas relief, a challenged jury instruction "cannot be merely 'undesirable, erroneous, or even "universally condemned,'" but must violate some due process right guaranteed by the fourteenth amendment." Cupp v. Naughten, 414 U.S. 141, 146 (1973). See also Estelle, 502 U.S. at 72 (holding that to find constitutional error, there must be a "'reasonable likelihood that the jury has applied the challenged instruction in a way' that violates the Constitution") (quoting Boyde, 494 U.S. at 380); Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). To prevail on such a claim petitioner must demonstrate "that an erroneous instruction 'so infected the entire trial that the resulting conviction violates due process.'" Prantil v. California, 843 F.2d 314, 317 (9th Cir. 1988) (quoting Darnell v. Swinney, 823 F.2d 299, 301 (9th Cir. 1987)). See also Middleton v. McNeil, 541 U.S. 433, 437 (2004); Estelle, 502 U.S. at 72; Henderson v. Kibbe, 431 U.S. 145, 156-57 (1977). In making this determination, the challenged jury instruction "'may not be judged in artificial isolation,' but must be considered in the context of the instructions as a whole and the trial record." Estelle, 502 U.S. at 72 (quoting Cupp, 414 U.S. at 14). See also Prantil, 843 F.2d at 317 (the habeas court must evaluate the challenged jury instructions "'in the context of the overall charge to the jury as a component of the entire trial process.'") (quoting Bashor v. Risley, 730 F.2d 1228, 1239 (9th Cir. 1984)).

When a petitioner challenges a penalty phase jury instruction on the grounds that it is ambiguous, the question posed to the reviewing court is "whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence." Boyde, 494 U.S. at 380; accord McGuire, 502 U.S. at 72. See also Murtishaw v. Woodford, 255 F.3d 926, 967 (9th Cir. 2001). Even if constitutional instructional error has occurred, a petitioner is not entitled to relief unless the constitutional error "had substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). See also California v. Roy, 519 U.S. 2, 6 (1996); Cavitt v. Cullen, 728 F.3d 1000, 1010 (9th Cir. 2013), cert. denied ___ U.S. ___, 134 S. Ct. 1522 (2014).

2. Petitioner's Mandatory Language Challenge

The Supreme Court specifically considered CALJIC 8.84.2 in Boyde, and the mandatory language of penalty phase jury instructions more generally in Blystone v. Pennsylvania, 494 U.S. 299 (1990). In Boyde, the petitioner had argued that CALJIC 8.84.2 did not adequately inform the jury as to its discretion in determining the appropriate sentence to be imposed. 494 U.S. at 376. The Court held that the mandatory language of the instruction did not unconstitutionally restrict jury sentencing discretion. Id. at 377 ("But there is no such constitutional requirement of unfettered sentencing discretion in the jury, and States are free to structure and shape consideration of mitigating evidence 'in an effort to achieve a more rational and equitable administration of the death penalty.' Petitioner's claim that the 'shall impose' language of CALJIC 8.84.2 unconstitutionally prevents 'individualized assessment' by the jury is thus without merit.") (quoting Franklin v. Lynaugh, 487 U.S. 164, 181 (1988) (plurality opinion)). The Supreme Court thus reasoned that there is no constitutional requirement of unfettered sentencing discretion that permits a jury to have the freedom to decline to impose the death penalty even if the jury decides that the aggravating circumstances outweigh the mitigating circumstances. Id.; see also Kansas v. Marsh, 548 U.S. 163, 171 (2006) ("So long as the sentencer is not precluded from considering relevant mitigating evidence, a capital sentencing statute cannot be said to impermissibly, much less automatically, impose death."); Turner v. Calderon, 281 F.3d 851, 871 (9th Cir. 2002); Bonin v. Calderon, 59 F.3d 815, 849 (9th Cir. 1995) (finding this argument foreclosed by the decisions in Boyde and Blystone). Additionally, the Court quoted with approval the California Supreme Court's conclusion that the jury in the case before it had been "adequately informed as to its discretion in determining whether death was the appropriate penalty." Id. at 376 (quoting People v. Boyde, 46 Cal. 3d 212, 253 (1988)).

In deciding Boyde, the Supreme Court relied heavily on its previous decision in Blystone. Blystone involved a Pennsylvania death penalty statute that in part mandated the death penalty if the jury unanimously found at least one aggravating circumstance and no mitigating circumstances. Blystone, 494 U.S. at 301. The petitioner in that case had argued that the mandatory nature of the instruction unconstitutionally restricted the discretion of the sentencing jury to weigh the aggravating and mitigating circumstances however it deemed appropriate. Id. at 302. In rejecting the petitioner's argument, the Supreme Court held that the requirement of individualized sentencing in capital cases is met by allowing the jury to consider all relevant mitigating factors and that the heightened standards of the Eighth Amendment are thereby satisfied. Id. at 307-08.

Because the United States Supreme Court has upheld the very instruction given in this case against an Eighth Amendment challenge,⁷⁴ petitioner's challenge to that instruction fails as a matter of law.⁷⁵

74 Because the undersigned reaches this conclusion, it need not consider respondent's alternative argument that this claim advanced by petitioner is Teague barred. (Dkt. No. 427 at 32-35.)

75 This issue is properly resolved as matter of law. Nonetheless, the undersigned notes that the "shall" language of the challenged jury instruction was further clarified by the trial court. At the request of defense counsel, petitioner's jury was provided additional instructions governing their consideration of aggravating and mitigating circumstances, including the following instruction:

In considering, taking into account, and being guided by the aggravating and mitigating circumstances, you may not decide the effect of such circumstances by the simple process of counting the number of circumstances on each side. The particular weight of such opposing circumstances is not determined by the relative number, but rather by their relative convincing force on the ultimate question of punishment.

(CT at 1666; RT at 5539.) The California Supreme Court, after considering the instructions given as a whole and the arguments of counsel, concluded that the prosecution did not "exploit possible ambiguities" in this jury instruction. Webster, 54 Cal. 3d at 451. Considered together, the closing arguments of counsel and the instructions provided by the court diminished any possible confusion in the jury's mind regarding their discretion or sentencing role resulting from the use of the word "shall" in CALJIC 8.84.2.

3. Petitioner's Liberty Interest Challenge

Petitioner also asserts that the giving of CALJIC 8.84.2 at his trial, breached state-law procedural safeguards which had in turn created a liberty interest protected by the Due Process Clause. Petitioner is correct that deprivation of a state-law procedural safeguard can constitute a violation of due process. See Hicks v. Oklahoma, 447 U.S. 343, 346 (1980). In Hicks, the jury imposed a forty-year prison sentence upon the petitioner, as mandated by a provision of a state habitual offender statute. Id. at 345. The state appellate court later declared the provision unconstitutional, but affirmed the petitioner's sentence. Id. The United States Supreme Court vacated that judgment, holding that a defendant's interest in the exercise of the jury's discretion in imposing punishment is not merely a matter of state procedural law, but is a liberty interest that the Fourteenth Amendment preserves against arbitrary deprivation by the state. Id. at 346. The Court stated:

Where . . . a State has provided for the imposition of criminal punishment in the discretion of the trial jury, it is not correct to say that the defendant's interest in the exercise of that discretion is merely a matter of state procedural law. The defendant in such a case has a substantial and legitimate expectation that he will be deprived of his liberty only to the extent determined by the jury in the exercise of its statutory discretion, cf. Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 99 S. Ct. 2100, 60 L.Ed.2d 668 (1979),
and that liberty interest is one that the Fourteenth Amendment preserves against arbitrary deprivation by the State.

Id. See also Murtishaw, 255 F.3d at 969-71.

However, the deficiency in petitioner's argument on this point is that California law had not created the claimed liberty interest at the time of the petitioner's trial in 1983. Not until two years later did the California Supreme Court raise concerns over the language and use of CALJIC 8.84.2. See People v. Brown, 40 Cal. 3d 512, 541 (1985).⁷⁶ The petitioner in Brown had asserted that the mandatory language of CALJIC 8.84.2 confined the jury's sentencing discretion to a mechanical counting of aggravating versus mitigating factors. Brown, 40 Cal. 3d at 538. At that time, the California Supreme Court commented that CALJIC 8.84.2 carried the potential for confusion in the law, "which calls for certain prophylactic instructions in future death penalty trials." Id. at 538 n. 9. However, the California Supreme Court ultimately ruled that the mandatory language of the instruction did not unconstitutionally restrict the discretion of the jury. Id. at 544. See also Turner v. Calderon, 970 F. Supp. 781, 810 (E.D. Cal. 1997) ("The absence of this explanatory language from sentencing instructions, however, does not render a death sentence unconstitutional."), aff'd in relevant part 281 F.3d 851 (9th Cir. 2002).

76 The United States Supreme Court reversed Brown on other grounds in California v. Brown, 479 U.S. 538 (1987).

Petitioner's claim that the mandatory language of the penalty phase instruction given at his trial, CALJIC 8.84.2, unconstitutionally restricted the jury's sentencing discretion has been addressed and answered adversely to him by the United States Supreme Court in both Boyde and Blystone. Consequently, any concerns raised by the California Supreme Court's decision in Brown are unavailing to petitioner in light of the later holding that the challenged instruction is constitutionally valid.

Moreover, even if California procedural law, at the time of petitioner's sentencing, created a constitutionally protected liberty interest in limiting the imposition of its death penalty to only those individuals for whom a jury has determined that the aggravating factors outweigh the mitigating factors and where death is also appropriate, that liberty interest was not violated here. See McClain v. Calderon, No. CV 89-3061 JGD, 1995 WL 769176, at * 82-83 (C.D. Cal. Aug. 22, 1995), aff'd 134 F.3d 1383 (9th Cir. 1998) (rejecting a similar claim in light of the record reflecting that counsel's arguments to the jury on the whole correctly represented California law). Here, the record reflects that the prosecutor's closing argument did not focus on the challenged instruction or its language. He mentioned that aggravating factors far outweighed the mitigating factors in the case only once in passing and certainly did not misrepresent California law at the time. This aspect of the record, when considered along with the additional jury instructions given with respect to consideration of aggravating and mitigating circumstances (see fn. 75, above), compels the court's conclusion.

Therefore, the undersigned finds that CALJIC 8.84.2 did not unconstitutionally restrict the jury's discretion in determining the appropriate penalty in petitioner's case. Accordingly, the undersigned recommends that federal habeas relief be denied as to this aspect of petitioner's claim.

C. Trial Court's Failure to Exercise Independent Review According to California Law

In his Claim 42, petitioner alleges that in reviewing the aggravating and mitigating circumstances in response to his automatic application for modification of the jury verdict under California Penal Code § 190.4, the trial court violated petitioner's "constitutional rights" by misconstruing the factors and applying unconstitutional definitions and standards.⁷⁷

77 Petitioner did not identify in his federal habeas petition which constitutional rights he claims were violated. However, in ruling on the parties' cross-motions for summary judgment, the court construed this claim as alleging violations of the Due Process Clause of the Fourteenth Amendment and the Eighth Amendment. (Dkt. No. 176 at 139-40.)

At the time of petitioner's trial, § 190.4 provided that, if a jury has returned a "finding imposing the death penalty, the defendant shall be deemed to have made an application for modification of such verdict or finding" in the trial court. Cal. Penal. Code § 190.4(e). Under that statute the trial court is required to

review the evidence, consider, take into account, and be guided by the aggravating and mitigating circumstances referred to in Section 190.3, and . . . make a determination as to whether the jury's findings and verdicts that the aggravating circumstances outweigh the mitigating circumstances are contrary to law or the evidence presented.

Id. The provision requires that the trial judge "state on the record the reasons for his findings." Id. It appears undisputed that this procedure was followed in petitioner's case. (RT at 5641-56.)

Petitioner nonetheless challenges the trial court's decision denying his modification motion, arguing that it erred in three respects: (1) the trial court's review was not an independent assessment of the appropriateness of the death penalty in petitioner's individual case; (2) the trial court improperly considered the probation report in conducting the its review under § 190.4; and (3) the trial court improperly considered statutory sentencing factor § 190.3(j), "[w]hether or not the defendant was an accomplice to the offense and his participation in the commission of the offense was relatively minor," as an aggravating factor.

In moving for summary judgment in his favor with respect to this claim, respondent argued the state trial court's refusal to reverse petitioner's sentence on state law grounds was not reviewable in these federal habeas proceedings, and even if it was, the claim was wholly refuted by the record in this case. This court agreed with respondent's argument with respect to any alleged due process violation stemming from the trial courts review under § 190.4, finding: "Petitioner's allegations are clearly insufficient to state a claim that his due process rights were violated because the trial court's ruling on his automatic application for modification was fundamentally unfair." (Dkt. No. 176 at 140.) However, with respect to any alleged Eighth Amendment violation, the undersigned recommended that respondent's motion for summary judgment be denied as "premature" since questions concerning the efficacy of the trial court's § 190.4 review appeared "logically intertwined with petitioner's arguments challenging the sufficiency of the California death penalty statute's narrowing function under Zant, 462 U.S. at 890 . . . and with arguments attacking the lack of meaningful appellate review." (Dkt. No. 176 at 140.) That recommendation was adopted by the assigned District Judge. (Dkt. No. 201.)

Thus, in arguing that the trial court erred in conducting its review under § 190.4, petitioner can state a cognizable claim, if at all, only under the Eighth Amendment. Petitioner, however, has failed to set forth any legal basis for such an Eighth Amendment claim. Indeed, he acknowledges that the Ninth Circuit has "suggested" that a challenge to a court's § 190.4 review may only constitute an error of state law, not reviewable in a federal habeas proceeding. In fact, the Ninth Circuit has done more than merely "suggest" that this is the case, expressly stating that "at most the [trial court's] error [in ruling on the section 190.4(e) motion] would be one of state law" and thus not one cognizable as a habeas claim. Turner, 281 F.3d at 871 (citing Pulley, 465 U.S. at 41 (federal court may not issue a writ based on a perceived error of state law)).

In Turner, the petitioner argued, just as petitioner does here, that the trial court violated § 190.4 by considering non-statutory aggravating factors and failing to consider mitigating factors when reviewing the petitioner's automatic application for modification of a death verdict. There, the petitioner asserted that his Fifth, Eighth, and Fourteenth Amendment rights were violated as a result. The Ninth Circuit rejected the petitioner's arguments, ruling that:

Because Turner provides no legal authority to support his constitutional claim, and because the trial court made an individualized determination of whether death was the proper punishment, we agree with the district court that 'at most the [trial court's] error would be one of state law.'

Id. Here, petitioner fails to cite any contrary authority establishing a legal basis for this claim. Although he cites one district court opinion that analyzing a § 190.4(e) challenge brought in a federal habeas petition, that decision pre-dates the decision Turner. See Williams v. Vasquez, 817 F. Supp. 1443, 1490-91 (E.D. Cal. 1993).⁷⁸ Moreover, in that case the district court concluded that although the trial court had considered invalid factors, it had cited sufficient additional factual support for its independent determination that the evidence supported the jury's findings and verdict and that, therefore, no constitutional violation had occurred. Id. at 1491. The same can be said of the errors alleged by this petitioner with respect to the sentence modification hearing in his case.

78 Although not relied upon by petitioner, the undersigned is aware that in two decisions following Turner, the Ninth Circuit addressed, without comment on the propriety of doing so, petitioners' § 190.4(e) challenges on the merits. See Belmontes v. Ayers, 529 F.3d 834, 877-78 (9th Cir. 2008) (rejecting claim), rev'd on other grounds, Wong v. Belmontes, 558 U.S. 15 (2009); Allen v. Woodford, 395 F.3d 979, 1017-18 (9th Cir. 2005) (finding any error harmless).

The decision in Turner is binding on this court. In Turner the Ninth Circuit specifically considered the issue of whether an Eighth Amendment claim based upon alleged error in the trial court's § 190.4 review rises to the level of a constitutional violation and found that it did not. Turner, 281 F.3d at 871; see also Hunter v. Vasquez, C 90-3275 JW, 1995 WL 429242, at *8 (N.D. Cal. July 17, 1995) ("Petitioner has a federal constitutional right to be free from arbitrary and capricious decisions at the modification hearing" held pursuant to California Penal Code §190.4(e).)

For these reasons the undersigned recommends that petitioner be denied federal habeas relief with respect to his Claim 42 that the trial court failed to properly exercise independent review of the jury's finding imposing the death penalty in his case as required under California Penal Code § 190.4.

D. Ineffective Assistance of Counsel re Investigating and Presenting a Defense in the Guilt Phase of the Trial

Petitioner claims that his trial counsel also provided ineffective assistance in the guilt phase of his trial by failing to investigate and introduce evidence of petitioner's alcohol and drug use, post-traumatic stress syndrome (PTSD), exposure to Agent Orange, and brain damage or dysfunction. (Pet. (Dkt. No. 73) at 75, 77, 82; claims 19A, 19G, 19H, 20B, 20B.4, and 20B.5.) Petitioner argues that the introduction of evidence on these issues would have supported a defense of diminished capacity or negated the element of intent. (Id. at 75, 82.) For the reasons set forth below, the undersigned concludes that petitioner is not entitled to relief because the evidence before the court reflects that his trial counsel did conduct investigation into these issues and that his decision not to further pursue a defense based on alcohol and drug use and/or petitioner's mental impairment based upon a PTSD condition or exposure to Agent Orange did not fall below an objective standard of reasonableness.⁷⁹

79 Petitioner did not request an evidentiary hearing with respect to his claim that he received ineffective assistance of counsel at the guilt phase of his trial, and none was granted. Rather, the evidentiary hearing in these habeas proceedings was limited to petitioner's claims of ineffective assistance of counsel at the penalty phase of his trial. Additionally, petitioner's traverse did not include any additional points and authorities in support of his ineffective assistance claims relating to the guilt phase of his trial. Instead, the traverse simply cited to the undersigned prior findings and recommendations addressing the parties' cross-motions for summary judgment. (Dkt. No. 434 at 2.) Therefore, it appears that petitioner is relying on his prior briefing on the cross-motions for summary judgment in support his claims of ineffective assistance of counsel at the guilt phase of his trial.

1. Relevant Trial Background

At petitioner's trial, the defense relied upon a theory of self-defense. Webster, 54 Cal. 3d at 426. Petitioner testified in his own defense as follows. (RT at 3682-3712, 3753-3858.) Petitioner and Burke met and devised a plan to use the car then in Burke's possession to sell drugs and commit robberies. (RT at 3690, 3698.) They drove around together for a while. (RT at 3696-98.) Then, as petitioner, Burke, Madrigal and Williams walked toward the campsite, petitioner and Burke argued over how to split the money they expected to obtain later from the drug sales and robberies. (RT at 3702-03.) Burke suddenly grabbed a knife from his pants pocket. (RT at 3703-04.) Petitioner then grabbed Burke's hand and a fight ensued. (RT at 3704-06.) Petitioner received a cut on his left leg. (RT at 3704-05.) During the fight, petitioner got the knife away from Burke. (RT at 3705-06.) When the fight ended, Burke was on the ground. (RT at 3706.) Petitioner and the others at the campsite decided to hide the body. (RT at 3707.) The group then fled in the car and threw Burke's and all of their knives in a river. (RT at 3709-10.)

Petitioner's counsel also called Larry Moser as a witness in petitioner's defense. (RT at 4643.) Moser testified that Burke had started a fight with him in a bar in 1978. (RT at 4643-45.) Moser said that, even after being escorted from the premises, Burke returned and hit him in the face with a bar glass. (RT at 4645.) Moser sustained injuries requiring thirty stitches. (RT at 4645.)

The jury was instructed on self-defense. (CT at 1436-48.) In his closing argument to the jury petitioner's counsel, O'Brien, contended that the evidence showed that petitioner had acted in self-defense. He pointed out that, unlike Burke, petitioner had sustained a "defensive wound" (RT at 4785, 4789), drawing on his cross-examination of the forensic pathologist (RT at 2795-96). In this regard, attorney O'Brien asserted that petitioner's leg wound was consistent with his testimony that Burke had pulled out a knife and turned toward petitioner with it. (RT at 4785.) Attorney O'Brien argued that the evidence that Burke's pants pocket had been turned out was also consistent with petitioner's own testimony that Burke grabbed a knife from his pants pocket. (RT at 4787.) Petitioner's counsel also pointed to Moser's testimony as supporting petitioner's testimony that Burke initiated the fight. (RT at 4790-91.) Attorney O'Brien also argued that the evidence reflecting that a fight had taken place on the trail near the camp was not consistent with the prosecution's theory of a carefully planned murder. In particular, petitioner's counsel in his closing argument attacked the credibility of prosecution witnesses Michelle Cram and Bruce Smith. (RT at 4775, et seq.)

2. Procedural History

Petitioner first alleged that his trial counsel was ineffective by failing to investigate and present evidence supporting a defense of diminished capacity, specifically based upon his drug and alcohol abuse and his PTSD condition related to his military service in Vietnam, in his petition for writ of habeas corpus filed in the California Supreme Court. Webster, 54 Cal. 3d at 423, 456-58; (see also 1988 Petition for Writ of Habeas Corpus, case number S007757 ("First State Petition"), lodged herein Nov. 30, 1994 (see Dkt. No. 38).)⁸⁰ Petitioner's claim of ineffective assistance in connection with the guilt phase of his trial was addressed by that court and rejected, Webster, 54 Cal. 3d at 456-58, and the habeas petition was denied on every ground. Id. at 423, 459-60.

80 That state habeas petition was ruled upon by the California Supreme Court in conjunction with petitioner's direct appeal on August 30, 1991

Petitioner also included this claim of ineffective assistance of trial counsel in a second petition for writ of habeas corpus he filed in the California Supreme Court on April 23, 1996. (See Dkt. No. 176 at 46; see also 1996 Petition for Writ of Habeas Corpus, case number S053140 ("Second State Petition"), lodged herein Dec. 5, 1996 (see Dkt. No. 100).) Therein, petitioner added a claim that his trial counsel should have pursued a trial defense of mental deficiency based on petitioner's exposure to Agent Orange in Vietnam. That habeas petition was summarily denied by the California Supreme Court. (See Dkt. No. 176 at 3.)

These claims of ineffective assistance of counsel at the guilt phase were renewed in petitioner's Second Amended Petition for Writ of Habeas Corpus filed in this court. (Dkt. No. 73 at 74-75, 77, 81-82.)

3. Evidence Relating to these Claims

In support of his ineffective assistance claims with respect to a possible defense based upon his mental state, petitioner presented the California Supreme Court with declarations from his trial counsel O'Brien, clinical psychologists John Podboy and Catherine Popell, pharmacologist David E. Smith, and petitioner himself, along with petitioner's military records. (Exs. A, B, and C to First State Petition, Exs. to Petitioner's Informal Reply to Respondent's Informal Resp. ("IR") to the First State Petition; Decls. in Supp. of Second State Petition.⁸¹) In response, the state presented a second declaration from petitioner's trial counsel O'Brien. (Ex. 1 to IR to First State Petition.)

81 All pleadings and exhibits with respect to petitioner's First State Habeas Petition were lodged with this court on November 30, 1994. (See Dkt. No. 38.) All pleadings and exhibits regarding his Second State Habeas Petition were lodged with this court on December 5, 1996. (See Dkt. No. 100.)

Attorney O'Brien stated in his first declaration, submitted by petitioner in support of his claim, that he was aware of his duty to investigate petitioner's mental state both at the time of trial and at the time the offense in question was committed. (Ex. C to First State Petition at 2.) O'Brien also acknowledged that he was "aware of the existence and significance of . . . post traumatic stress syndrome." (Id.) Attorney O'Brien stated that he had petitioner examined for these issues. (Id.)

In his own declaration, petitioner acknowledged that his trial attorney O'Brien had arranged to have him examined by "some psychiatrists who pronounced me legally sane and also mentally competent to stand trial." (Ex. A to First State Petition at 4.) Petitioner complained, however, that he was not told that "matters short of legal insanity" could have provided a partial defense or resulted in a lesser degree of homicide. (Id.)

Attorney O'Brien provided significantly more detail regarding his guilt phase preparation in his second declaration, which was filed by the respondent in the state habeas proceedings. (Ex. 1 to IR to First State Petition.) In that second declaration, attorney O'Brien stated as follows. O'Brien knew that petitioner had served in Vietnam and had seen combat there. (Id. at 1-2.) However, petitioner did not tell O'Brien that he had flashbacks or any other psychiatric problems related to his military service. O'Brien did know that petitioner's discharge was "less than honorable." Nevertheless, attorney O'Brien did investigate mental defenses, including PTSD, and was told none existed. (Id. at 2, 5.) In this regard, attorney O'Brien explained in his second declaration:

I had petitioner examined by psychologist Howard Budwin and psychiatrist Alfred French. I specifically had Budwin examine petitioner for PTSD. I informed both French and Budwin of what I had learned from petitioner, hoping that they could learn more from him in their examinations. Both Budwin and French informed me that they had found no evidence of PTSD in petitioner. Budwin found nothing that would assist from a psychological standpoint, including PTSD. Budwin found petitioner to be perfectly capable of killing and rational. Budwin found petitioner to be a sociopath.

(Id. at 2.)

O'Brien also stated that he had tried to obtain petitioner's military records. (Id. at 4.) However, in light of the findings of his mental health experts, O'Brien decided he did not need the military records for the guilt phase of petitioner's trial, but would use them if he could in the penalty phase. (Id. at 4-5.) Attorney O'Brien further explained that petitioner "had maintained throughout that Burke had attacked him with a knife, just as he testified to at trial." (Id. at 2.) According to O'Brien,

petitioner wanted to keep to his explanation of the event just as he had repeatedly explained to me and as he later so testified at trial; petitioner recognized that his specific and detailed recall of the events would foreclose joining with his codefendants in a defense of diminished capacity due to abuse of alcohol and drugs.

(Id. at 4.) O'Brien also pointed out that he was able to find and present a witness, Moser, whose testimony provided some support for petitioner's claim that he acted in self-defense upon being attacked by Burke. (Id. at 6.)

In support of this claim in the state habeas proceedings, petitioner also offered the declaration of Dr. Podboy, a clinical psychologist. (Ex. B to First State Petition.) Dr. Podboy met with petitioner on November 26, 1985, and January 28, 1986. (Id. at 3.) He also reviewed petitioner's military records and spoke with petitioner's family members. (Id.) Dr. Podboy stated his opinion based upon his review as follows:

Based on my examinations, I am of the opinion that Mr. WEBSTER suffered from a psychological condition at the time of the homicide, produced by a combination of drug abuse, alcohol abuse, and post-traumatic stress from his military service, which if properly presented to the guilt-phase jury could have led to a verdict of less than first-degree murder with special circumstances.

(Id. at 1.)

In 1996, in support of petitioner's second state habeas application, psychologist Dr. Popell executed a declaration stating that "[t]he records I have reviewed and my discussions with Mr. Webster, to date, indicate that he began using drugs and alcohol extensively while serving in the armed forces in Vietnam." (Popell Decl. in Supp. of Second State Petition.) Dr. Popell advised that her testing and evaluation were not complete, but that "preliminary test results strongly suggest the presence of neuropsychological brain dysfunction in Mr. Webster." (Id.)

Also in 1996, Dr. Smith examined petitioner and reviewed a number of records relating to petitioner. (Smith Decl. in Supp. of Second State Petition.) Based on that review, Dr. Smith concluded "that there is ample evidence to establish that at the time of the homicide . . . Mr. Webster was suffering from profound alcohol and drug abuse, as well as post-traumatic stress disorder." (Id.)

Petitioner's military records, which had finally been obtained by his counsel prior to the penalty phase of his trial, were submitted to the California Supreme Court as exhibits in support of petitioner's informal reply in the first state habeas proceeding.⁸² Petitioner's military records revealed some misconduct on his part and reflected disciplinary actions taken against him. As noted above, while serving in Vietnam, petitioner was absent without leave for ten days and then escaped from the custody of the military police. (Ex. F to Second State Petition.) For this, petitioner was demoted from a Specialist Four to a Private First Class E-3 and forfeited some pay. (Id. at 2, 4-5.) After his tours of duty in Vietnam, petitioner was stationed at Fort Carson, Colorado. (Id. at 7-24.) There, petitioner was further disciplined and demoted in rank for drug use and failure to report for duty. (Id. at 7-24.)

82 Evidence that petitioner had received the Bronze Star and Army Commendation Medal for heroism in Vietnam was summarily introduced during the penalty phase of his trial. (Ex. B to Second State Petition; RT at 5420-21.)

Petitioner's commanding officer at Fort Carson initiated proceedings to have petitioner discharged for unfitness. (Ex. F to Second State Petition.) As part of those proceedings, petitioner was examined by a psychiatrist. (Exs. G and H to Second State Petition.) Petitioner's military records included a report in which that psychiatrist made these comments after interviewing petitioner:

[Petitioner] uses marijuana daily and has used LSD and mescaline about 20 times in the past. [Petitioner] disagrees with what the Army stands for . . . . He feels no responsibility toward the Army and does whatever he feels like doing. [Petitioner] seemed to lack any motivation to do a job well. He expressed the desire to be separated from the Army by way of "212" action. [Petitioner] has several Articles 15 for being AWOL.

(Ex. H to Second State Petition at 1.)

The psychiatrist at that time concluded that petitioner "was and is mentally responsible, able to distinguish right from wrong and to adhere to the right, and has the mental capacity to understand and participate in board proceedings." (Id.) The psychiatrist diagnosed petitioner as having a passive-aggressive personality. (Id.) The psychiatrist opined that counseling at the Mental Hygiene Consultation Service would not alter petitioner's attitude and recommended his separation from service. (Id.) The resolution of the proceedings was that petitioner was discharged from the Army for unfitness under honorable conditions and his rank was reduced to E-1, the entry level. (Ex. K to Second State Petition.)

4. Legal Standards - Review

The legal standards to be applied in considering a claim based upon alleged ineffective assistance of counsel have been set out in detail above. In short, to establish ineffective assistance, a petitioner must show both that counsel's actions fell below an objective standard of reasonableness and that the alleged errors resulted in prejudice. Strickland, 466 U.S. at 687-88. To succeed with respect to the first component of that legal standard, a petitioner must overcome a "strong presumption" that counsel's performance fell within the "wide range of reasonable professional assistance," that counsel's actions and omissions were part of sound trial strategy and that all significant decisions were the result of acceptable professional judgment. Id. at 689-90. In this regard, "counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary . . . [.]" Id. at 691. See also Daniels, 428 F.3d at 1203 (counsel found "ineffective where he neither conducted a reasonable investigation nor made a showing of strategic reasons for failing to do so"); Douglas, 316 F.3d at 1085 ("Trial counsel has a duty to investigate a defendant's mental state if there is evidence to suggest that the defendant is impaired.").

Even where counsel's performance is found to be deficient, in order to prevail on such a claim a petitioner is required also to show that counsel's conduct prejudiced him. Strickland, 466 U.S. at 691-92. In order to establish such prejudice, a 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. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. Ultimately, the "focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged." Id. at 696. There is no constitutional violation unless counsel made "errors so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. at 687.

5. Analysis

In this case, the undersigned finds that petitioner has not met his burden of establishing that his trial counsel failed to act within professional norms in conducting a pretrial investigation into a possible defense based on mental impairment and/or intoxication⁸³ and, thereafter, based on the results of mental health examinations of petitioner, in choosing to rely on a theory of self-defense at the guilt phase of petitioner's trial.

83 The defense of diminished capacity was abolished in California in 1982, but was available to petitioner because his crime of conviction was committed in August of 1981. People v. Payton, 3 Cal. 4th 1050, 1060 n. 3 (1992) (citing People v. Pensinger, 52 Cal. 3d 1210, 1241 (1991)). If evidence showed that due to diminished capacity caused by mental illness, mental defect or intoxication, the defendant did not have the capacity to form the mental state of malice aforethought, the killing would have been voluntary manslaughter. People v. Turk, 164 Cal. App. 4th 1361, 1373 (2008). However, even at that time it had been recognized that "merely showing that the defendant had consumed alcohol or used drugs before the offense, without any showing of their effect on him, is not enough to warrant an instruction on diminished capacity." Pensinger, 52 Cal. 3d at 1241. Also at that time, evidence of a defendant's mental condition or intoxication could be relevant to show whether the defendant actually formed the requisite mental state, including malice, both express and implied, and the intent to kill. Turk, 164 Cal. App. 4th at 1376. Although not in specific reference to petitioner, the jury in his case was instructed with respect to both diminished capacity and the relevance of intoxication to the element of specific intent. (CT at 1420-33).

To the extent the facts and circumstances suggested the possibility of a mental impairment defense, attorney O'Brien fulfilled his required duty by retaining a psychologist and a psychiatrist to examine petitioner for mental health issues, including PTSD. Following their examinations of petitioner, those experts reported to defense counsel that they had uncovered no support for a psychological defense, including one based on PTSD. As has been recognized, "[i]t is certainly within the 'wide range of professionally competent assistance' for an attorney to rely on properly selected experts." Harris v. Vasquez, 949 F.2d 1497, 1525 (9th Cir. 1990). Accord Stokley v. Ryan, 659 F.3d 802, 813, n.8 (9th Cir. 2011), cert. denied ___ U.S. ___, 133 S. Ct. 134 (2012); Crittenden v. Ayers, 624 F.3d 943, 965 (9th Cir. 2010); Williams v. Woodford, 384 F.3d 567, 611 (9th Cir. 2004) ("Given that the mental-health experts' evaluations of Williams did not support a mental-state defense, Ingber's decision not to investigate further or ultimately pursue the defense was a reasonable strategic choice."); Hendricks, 70 F.3d at 1038; Morgan v. Bunnell, 24 F.3d 49, 52 (9th Cir. 1994) ("In light of these expert opinions, defense counsel reasonably declined to try these [insanity or diminished capacity] defenses.").

Significantly, petitioner does not contend nor has he offered evidence to suggest that the medical professionals retained by his trial counsel were not competent or that counsel acted unreasonably in hiring them. See Hendricks, 70 F.3d at 1037 ("There is no evidence that the conclusions of the experts were tentative, snap judgments, or otherwise based on anything less than a full analysis of complete data."); Harris, 949 F.2d at 1525 ("Harris has not alleged any facts showing that Ryan should not have chosen the two psychiatrists who assisted the defense, or that Ryan had any reason to believe the defense psychiatrists were incompetent, or that their credentials were deficient in any way."). While an investigation cannot be cursory, "counsel need not investigate interminably." Mickey v. Ayers, 606 F.3d 1223, 1237 (9th Cir. 2010) (citing Hendricks, 70 F.3d at 1037), cert. denied ___ U.S. ___, 132 S. Ct. 419 (2011). Moreover, there is no requirement that defense counsel "shop around" for an expert who will render the desired opinion. Sidebottom v. Delo, 46 F.3d 744, 753 (8th Cir. 1995). Accord Payton v. Cullen, 658 F.3d 890, 896 (9th Cir. 2011) ("Having retained qualified experts, it was not objectively unreasonable for Merwin not to seek others."), cert. denied ___ U.S. ___, 133 S. Ct. 426 (2012); Winfield v. Roper, 460 F.3d 1026, 1041 (8th Cir. 2006). "[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable . . . [.]" Strickland, 466 U.S. at 690.

It is true that attorney O'Brien failed to obtain petitioner's military records before he retained his experts, and it is certainly troubling that he decided he did not need those records for the guilt phase of petitioner's trial. (Ex. 1 to IR to First State Petition at 4-5.) However, there is no indication in the record before this court that the mental health professionals retained by petitioner's counsel definitely required those military records to form their opinions. With respect to guilt phase preparation, as opposed to penalty phase, counsel has no affirmative duty to anticipate and gather the background information an expert might need. Hendricks, 70 F.3d at 1038-39.

As the Ninth Circuit has recognized:

To now impose a duty on attorneys to acquire sufficient background material on which an expert can base reliable psychiatric conclusions, independent of any request for information from an expert, would defeat the whole aim of having experts participate in the investigation. An integral part of an expert's specialized skill at analyzing information is an understanding of what information is relevant to reaching a conclusion.

Id. at 1038. Accord Murtishaw, 255 F.3d at 945 ("Absent such a specific request for information, [attorney] Feringa was not required to provide either expert with additional information."); Coleman v. Calderon, 150 F.3d 1105, 1114-15 (9th Cir.) (same), rev'd on other grounds, 525 U.S. 141 (1998).⁸⁴ Rather, as recognized by the Ninth Circuit it is the expert who is in the best position to identify what background information is relevant to the task for which the expert is retained. Hendricks, 70 F.3d at 1038; Coleman, 150 F.3d at 1115. Part of the value of an expert is in "guid[ing] the attorney's efforts toward collecting relevant evidence." Hendricks, 70 F.3d at 1039. See also Coleman, 150 F.3d at 1115.

84 As indicated above, case law requires a more proactive role for counsel in regard to penalty phase experts and evidence relating to mitigation. Murtishaw v. Woodford, 255 F.3d 926, 945 n.9 (9th Cir. 2001) (citing Caro v. Calderon, 165 F.3d 1223, 1226-27 (9th Cir. 1999)); see also Pizzuto v. Arave, 385 F.3d 1247, 1256, n. 8 (9th Cir. 2004) (noting that in holding "defense counsel is not ineffective for failing to provide a mental health expert with unrequested background information about the defendant for the guilt phase of trial the court [in in Murtishaw] specifically distinguished existing precedent that held that, to be effective in the penalty phase of a capital case, defense counsel must provide background information to mental health experts who are examining the client, even if the experts do not request those facts").

Here, not only did the defense experts' evaluations of petitioner fail to support the offering of a defense based on intoxication or mental impairment, attorney O'Brien's own discussions with petitioner reasonably led O'Brien to adopt self-defense as the theory of the case. As O'Brien has attested, petitioner "maintained throughout that Burke had attacked him with a knife, just as he testified to at trial." (Ex. 1 to Informal Response to First State Petition at 2.) Moreover, O'Brien has stated that petitioner insisted on testifying at his trial to present that account to the jury himself. (Id. at 4.) Attorney O'Brien also maintained that petitioner acknowledged to him that the "specific and detailed recall of the events" to which petitioner would testify would be inconsistent with a diminished capacity defense. (Id. at 4.) See Turk v. White, 116 F.3d 1264, 1266-67 (9th Cir. 1997) (defense counsel found to have acted reasonably in choosing a self-defense theory over a mental health defense theory where a mental health defense would have been inconsistent the defendant's version of events and other evidence and justified counsel's decision not to investigate further a mental health defense).

Attorney O'Brien's declaration in this regard is corroborated by petitioner's own trial testimony. Petitioner testified at his trial and gave a detailed account of events leading up to the stabbing of Burke, as described above. (RT at 3690-3703.) Petitioner also described the argument over money as the group walked along the trail to their campsite. (RT at 3702-03.) Petitioner further testified clearly and coherently about the fight itself. He explained that Burke suddenly grabbed a knife from his pants pocket and that petitioner grabbed Burke's hand and the fight ensued. (RT at 3703-06.) Petitioner testified that he received a cut on his left leg but that as the fight continued, he got the knife away from Burke and when the fight ended, Burke was on the ground. (RT at 3704-06.) Although petitioner testified that he was "excited" and "upset" when the fight was over, he certainly did not describe any break with reality, flashback, blackout or unusual mental state during his account of the incident at his trial. Petitioner also gave a detailed account during his testimony of the group's subsequent disposal of Burke's body and their flight. (RT at 3707-10.) Moreover, in his declaration submitted in support of his state habeas application, petitioner did not repudiate any of his trial testimony in this regard. (See Ex. A to First State Petition.)

A defense attorney may rely on his client's statements and preferences in choosing a defense of alibi, self-defense or innocence over a defense based on some type of mental impairment. See Stankewitz v. Woodford, 365 F.3d at 720 n.7 ("An attorney's performance is not deficient where, as here, it reflects a reasonable strategic choice that aligns with his client's wishes."); Bean, 163 F.3d at 1082 ("In light of Bean's assertion to Roehr that he had not been at the Schatz residence at the time of the crimes, his reluctance to blame his alleged co-burglar, and his own refusal to adopt the diminished capacity defense, Roehr made a reasonable strategic choice to present an alibi defense."); Campbell v. Kincheloe, 829 F.2d 1453, 1463 (9th Cir. 1987); see also Middleton v. Roper, 455 F.3d 838, 848 (8th Cir. 2006) ("Counsel's adherence to Middleton's desired defense supports a conclusion of reasonably effective assistance."); Campbell v. Polk, 447 F.3d 270, 280 (4th Cir. 2006) ("We further cannot fault counsel for heeding petitioner's protestations of his own innocence. To have pursued a different tack in the face of those assertions would have presented problems of its own.").

"The reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions. Counsel's actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant." Strickland, 466 U.S. at 691. Here, petitioner has failed to establish that attorney O'Brien's decision to present a self-defense theory at trial, in reliance on petitioner's account of the events and petitioner's expressed preference to tell his story to the jury, was an unreasonable one. This is particularly true given the examination results reported by the psychologist and the psychiatrist employed by counsel.

Having reasonably adopted the strategy of self-defense, attorney O'Brien cannot be found ineffective for not continuing to pursue a guilt-phase defense based on petitioner's mental impairment, whether based on PTSD, intoxication or exposure to Agent Orange. See Williams v. Woodford, 384 F.3d at 611 ("Having reasonably selected an alibi defense as the primary defense theory, Ingber no longer had a duty to investigate a conflicting mental-state defense."); Bean, 163 F.3d at 1082 ("Once Roehr reasonably chose that theory, largely on the basis of Bean's own representations, his duty to investigate the directly conflicting diminished capacity defense was at an end.") (citing Turk, 116 F.3d at 1267). "[W]hen the facts that support a certain potential line of defense are generally known to counsel because of what the defendant has said, the need for further investigation may be considerably diminished or eliminated altogether." Strickland, 466 U.S. at 691. Here, once attorney O'Brien reasonably adopted the self-defense theory supported by petitioner's own representations, his duty to investigate the directly conflicting diminished capacity defense as part of his guilt phase preparation ended.⁸⁵

85 Petitioner also complains that his trial counsel did not explain to him that "matters short of legal insanity could provide a partial defense to the charges against me, nor did he tell me that expert witnesses could be hired to explain to the jury that my combat experiences, and the use of drugs, use of alcohol and resulting psychological problems could legally result in my being found guilty of some degree of homicide less than first-degree murder." (Ex. A to First State Petition at 4.) Petitioner's argument notwithstanding, he has failed here to establish deficient performance on the part of his trial counsel. It is not disputed that the examinations conducted by the mental health professionals retained by trial counsel provided no support for a defense based upon a claim that petitioner suffered from a mental impairment. (See Exh. 1 to Informal Response at 2) As such, no duty on counsel's part to pursue that issue any further was ever triggered. Doe v. Woodford, 508 F.3d 563, 569 (9th Cir. 2007) ("The defendant fails to point to any credible evidence of mental incapacity which would have triggered a duty on the part of his counsel to investigate for possible defenses."). Counsel's explaining to petitioner the nuances of the potentially available legal theories of defense would not have changed this fact.

In sum, petitioner has failed to establish deficient performance on the part of his trial counsel at the guilt phase of his trial. Because petitioner has failed to establish this first prong, the court need not consider the issue of prejudice stemming from the alleged ineffective assistance. Strickland, 466 U.S. at 697 (recognizing that a court need not address Strickland's components in any particular order or even address both if the defendant makes an insufficient showing with respect to one component). For the reasons set forth above, the undersigned recommends that petitioner be denied federal habeas relief with respect to his claim that he received ineffective assistance as a result of his trial counsel's failure to investigate and present a mental health defense.

E. Ineffective Assistance of Counsel - Petitioner's Motion to Suppress Evidence

Petitioner also contends that he was deprived of the effective assistance of trial counsel based on three instances in which he contends his counsel failed to adequately cross-examine the prosecution's witnesses at the pretrial hearing on his motion to suppress evidence. (Pet. (Dkt. No. 73) at 82-83, 85 (claims 20B.7, 20B.8, 20B.9, and 21B).) For the reasons set forth below, the undersigned concludes that petitioner has not carried his burden of establishing deficient performance by his counsel in these instances.

1. Relevant Background

After killing Burke, petitioner and his five companions loaded their belongings into the car that Burke had been driving and drove south through the night. Webster, 54 Cal. 3d at 425. Early the next morning, petitioner and three of the others robbed a convenience store in Pacoima, California. Id. at 427. Armed with knives, they took food and money from the store. Id. Petitioner forced the store clerk, Eli Yitshaky, to lie on the floor, took his wallet and watch, and struck him in the head. Id.; (RT at 5365-81.) Los Angeles police took a report regarding the Pacoima robbery and a description of the robbers was broadcast. (RT at 70-74.) Later that day, petitioner was stopped for speeding, and Mr. Yitshaky's wallet was found in the car. Webster, 54 Cal. 3d at 429. The discovery of this evidence ultimately tied the group to the Pacoima robbery and the Burke killing.

In pretrial proceedings, petitioner and his codefendants joined in filing a motion to suppress evidence. Id. at 429; (CT at 1069; RT 68.) An evidentiary hearing was held pursuant to California Penal Code §1538.5 before trial. (RT at 65-521, 533.) Petitioner's counsel argued that the search of the vehicle leading to the discovery of Mr. Yitshaky's stolen wallet was invalid and that the police lacked cause to impound the vehicle driven by petitioner. Webster, 54 Cal. 3d at 430; (CT at 1069; RT at 68, 498.) The trial court denied in part and granted in part the motion to suppress evidence. (RT at 533.)⁸⁶

86 The trial court suppressed bedrolls and the items found therein that were seized by officers, finding that those items were not closely enough associated with the defendants at the time of their arrests. (RT at 533.) The motion to suppress was denied in all other respects. (Id.)

The following evidence relevant to the instant ineffective assistance of counsel claims was adduced at the evidentiary hearing in state court on the motion to suppress. On the afternoon of the Pacoima robbery, Officer Leslie Abbott of the California Highway Patrol stopped a Chrysler vehicle for speeding near Barstow. Webster, 54 Cal. 3d at 429. The driver, petitioner, got out of the vehicle and approached the officer. (RT at 107.) Petitioner presented his birth certificate for identification and told the officer that he had no driver's license. (RT at 109, 111.) Officer Abbott asked petitioner who the owner of the car was, and petitioner responded that it belonged to one of the passengers in the back seat of the car. (RT at 114.) However, petitioner also told the officer that the passengers were hitchhikers. (RT at 130-31.) Officer Abbott then requested a check for wanted persons over his radio. (RT at 111.) As Officer Abbott was writing petitioner a speeding ticket, he received word that petitioner had an outstanding felony arrest warrant. (RT at 112.) Petitioner was wanted for escaping from a Washington prison. (RT at 115.) Officer Abbott arrested petitioner and waited a few minutes for backup officers to arrive. (RT at 113, 115.) Officer Abbott then asked the passengers who owned the car. (RT at 116.) He received no verbal response; each of the passengers simply shook his or her head or shrugged. (RT at 117.) Officer Abbott asked the passengers to exit the car. (Id.) As they did so, the officer noticed that the passenger who had been sitting in the middle of the front seat, codefendant Coville, was intoxicated. (RT at 117-18.) Officer Abbott then arrested Mr. Coville for public drunkenness. (RT at 123.)

With all of the occupants out, Officer Abbott leaned into the car and looked for the vehicle registration in the glove compartment and above the visors. (RT at 123, 125.) As he did so, he saw a wallet in plain view on the front seat. (RT at 125.) When no one who had been in the car claimed the wallet, Officer Abbott looked inside. (RT at 127-28.) There, he found identification for Eli Yitshaky. (RT at 129.) All of those who had been inside the car denied knowing Mr. Yitshaky. (Id.)

Officer Abbot then received information that the car was registered to a Mr. Glover of Oroville. (RT at 132.) All of those who had been in the car also denied knowing Mr. Glover. (Id.) Petitioner and Coville were then transported to the local Sheriff's Department, the car was impounded and the other four occupants were released. (RT at 133.)

When petitioner was booked, it was discovered that he had a credit card in his pocket bearing the name of Robert K. Woodington. (RT at 134-135.) The credit card had been reported stolen in the Pacoima robbery. (RT at 135.) Officer Abbott realized that the description of the suspects in that case matched the other occupants of the car, whom he had just released. (RT at 137.) The four occupants of the car who had initially not been arrested were then located. (RT at 140.) In addition, items matching the description of items taken during the Pacoima robbery littered the impounded car. (Id. at 429-30.) Once taken into custody, Smith and Cram made statements about the killing of Burke. Webster, 54 Cal. 3d at 429.

Detective George Rock was also assigned to investigate the Pacoima robbery. (RT at 326.) He transported petitioner and two of the other arrestees from Barstow to Los Angeles. (RT at 331.) When he booked petitioner into jail, Detective Rock observed a fresh stab wound above petitioner's left knee and retrieved credit card receipts in the name of Mr. Woodington from petitioner's wallet. (RT at 335-36.)

On direct appeal, the California Supreme Court held that Officer Abbott "acted properly when he removed the occupants of the Chrysler and entered the car for the limited purpose of finding the registration." Webster, 54 Cal. 3d at 430. The court further found that the wallet was "lying in plain view" when Officer Abbott found it. Id. In light of evidence of the occupants' denials of ownership, the court concluded that Officer Abbott was justified in opening the wallet to find out to whom it belonged. Id. The court also found that the search was constitutionally reasonable, (id.), and that impounding the vehicle was "entirely proper." Id. at 432. The court noted that law enforcement had probable cause to believe that the car could be stolen. Id.

Petitioner first claimed that his counsel was ineffective in examining witnesses at the suppression hearing in his second state habeas petition. His claim was summarily rejected by the California Supreme Court.⁸⁷ In this court, petitioner originally raised several claims based on the assertion that evidence incriminating him in the murder was obtained as a result of an illegal search and seizure. (See Dkt. No. 176 at 89.) The undersigned found that these claims were not cognizable under the holding in Stone v. Powell, 428 U.S. 465 (1976), or had been abandoned by petitioner and therefore recommended the granting of summary judgment in favor of respondent with respect to those claims. (Dkt. No. 176 at 89-92, 201.) Those recommendations were adopted. (Dkt. No. 201.)

87 That petition and order were lodged here on December 5, 1996. (See Dkt. No. 100.)

Claims of ineffective assistance of counsel relating to search and seizure issues litigated in state court are cognizable on federal habeas review. Kimmelman v. Morrison, 477 U.S. 365, 382-83 (1986). Only those claims survived here because the undersigned found summary judgment premature since petitioner was still conducting investigation with respect to his ineffective assistance of counsel claims at that time. (Dkt. No. 176 at 92-93.) As noted above, petitioner did not seek an evidentiary hearing with respect to these specific claims of ineffective assistance.

2. Legal Standards

As discussed above, to establish ineffective assistance a petitioner must show both that counsel's actions fell below an objective standard of reasonableness and that the alleged errors resulted in prejudice. Strickland, 466 U.S. at 687-88. Again, to succeed with regard to the first component, a petitioner must overcome a "strong presumption" that counsel's performance fell within the "wide range of reasonable professional assistance," that counsel's actions and omissions were part of sound trial strategy and that all significant decisions were the result of acceptable professional judgment. Id. at 689-90. "The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. Finally, "in order to show prejudice when a suppression issue provides the basis for an ineffectiveness claim, the petitioner must show that he would have prevailed on the suppression motion, and that there is a reasonable probability that the successful motion would have affected the outcome." Bailey v. Newland, 263 F.3d 1022, 1029 (9th Cir. 2001) (quoting Van Tran v. Lindsey, 212 F.3d 1143, 1156 (9th Cir. 2000)). See also Kimmelman, 477 U.S. at 385; Ortiz-Sandoval v. Clarke, 323 F.3d 1165, 1170 (9th Cir. 2003).

3. Analysis

Petitioner contends that he was deprived of the effective assistance of counsel based on three instances in which he believes counsel could have performed more effectively in cross-examining the prosecution's witnesses at the evidentiary hearing on his motion to suppress evidence. (Pet. (Dkt. No. 73) at 82-83, 85; claims 20B.7, 20B.8, 20B.9, and 21B.)⁸⁸ It is well-recognized, however, that "choices in emphasis during cross-examination are prototypical examples of unchallengeable strategy." Phoenix v. Matesanz, 233 F.3d 77, 83 (1st Cir. 2000). As one court has observed:

88 Notably, this case does not involve the failure of defense counsel to bring a motion to suppress evidence in the first instance or claims that petitioner's defense counsel was deficient in failing to subject the prosecution's evidence to adversarial testing.

This is not the type of error, if indeed it is error at all, that the Sixth Amendment functions to correct. The cross-examination of a witness is a delicate task; what works for one lawyer may not be successful for another. Courts generally entrust cross-examination techniques, like other matters of trial strategy, to the professional discretion of counsel.

Henderson v. Norris, 118 F.3d 1283, 1287 (8th Cir. 1997). In keeping with these authorities, the Ninth Circuit has held that "counsel's tactical decisions at trial, such as refraining from cross-examining a particular witness or from asking a particular line of questions, are given great deference and must similarly meet only objectively reasonable standards." Dows v. Wood, 211 F.3d 480, 487 (9th Cir. 2000) (citing Strickland, 466 U.S. at 688-89). Accord Brown v. Uttecht, 530 F.3d 1031, 1035 (9th Cir. 2008); see also Silva, 279 F.3d at 852.

Aside from these governing standards, petitioner's claim is unsupported by the record before this court. Petitioner has presented no evidence regarding his trial counsel's reasoning and strategy in cross-examining the law enforcement officers at the evidentiary hearing on his motion to suppress evidence. As discussed above, cross-examination is an inherently tactical matter, and there is a strong presumption that counsel was competent. Strickland, 466 U.S. at 689-90; Brown, 530 F.3d at 1035; Dows, 211 F.3d at 487. Petitioner "must rebut this presumption by proving that his attorney's representation was unreasonable under prevailing professional norms and that the challenged action was not sound strategy." Kimmelman, 477 U.S. at 384. Where the record is silent regarding counsel's reasoning, counsel cannot be found ineffective where an objectively reasonable basis for counsel's actions can be ascertained. See Murray v. Schriro, 746 F.3d 418, 457 (9th Cir. 2014) (stating that the petitioner must "overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy") (quoting Strickland, 466 U.S. at 689); see also Chandler v. United States, 218 F.3d 1305, 1314 (11th Cir. 2000) ("[C]ounsel cannot be adjudged incompetent for performing in a particular way in a case, as long as the approach taken 'might be considered sound trial strategy.'") (quoting Darden v. Wainwright, 477 U.S. 168 (1986)); Silva, 279 F.3d at 852.

a. Officer Abbott

Petitioner first asserts that his trial counsel should have impeached Officer Abbott at the evidentiary hearing with his prior testimony, adduced at a preliminary hearing, that Coville was too intoxicated to understand that Officer Abbott was trying to identify the owner of the wallet during the traffic stop. (Pet. (Dkt. No. 73) at 82-83; claim 20B.7.) Petitioner believes that Officer Abbott's preliminary testimony on this point conflicted with his suppression hearing testimony in which he characterized Coville as "coherent and denied owning the wallet." (Pet. at 83.) While it is true that petitioner's counsel did not raise this point through his cross-examination at the suppression hearing, in making this claim petitioner ignores the fact that this very "inconsistency" in Officer Abbott's testimony was raised by counsel for petitioner's codefendant Madrigal at the evidentiary hearing. (RT at 201-04.) In this regard, the following exchange took place at the evidentiary hearing:

Q.: [by counsel for codefendant Madrigal]: . . . I think you testified yesterday that Mr. [Coville] made some offhand remarks when you showed him the wallet?
A.: Yes. Sir. He made some offhand remarks, plus shaking his head. And he - I can't recall. He may have even said, "No," when I asked him about it. I do know that he would not claim ownership of the wallet.
Q.: Okay. Now, you remember testifying about this at the Preliminary Hearing, do you not?
A.: I believe there was [sic] some questions to this respect, yes.
Q.: Okay. And I'd - I'm going to ask you if you recall giving this testimony on Page 204, Lines 15 through 19. . . . Let me ask you - I'll ask you if you recall giving this testimony, referring to taking the wallet back to [Coville]:
"Question: You tried to talk to [Coville]? Answer: As I recall, I took the wallet back and showed it to him and asked if it was his and received no response at all. Question: He was drunk, is that true? Answer: He was intoxicated."
A.: I recall that, yes, sir.
Q.: Now, does that refresh your memory as to whether or not he made some offhand remarks at the time you showed him the wallet or at some other time possibly?
A.: Well, he was continually making offhand remarks during the whole deal. I recall that - that he made no response in the
affirmative to my question.

(RT at 201-02.)

Mr. Madrigal's counsel continued his cross-examination of Officer Abbott in this same vein at the evidentiary hearing, but in the end he only confirmed the point that Coville had failed to claim the wallet as his own, leaving Officer Abbott with the "duty of reasonable diligence to ascertain and notify the owner of apparently lost property . . . ." Webster, 54 Cal. 3d at 431. Because the impeachment identified by petitioner as not having been raised by his counsel was brought forth in the cross-examination of Officer Abbott by counsel for his co-defendant, petitioner's counsel was not ineffective for not plowing the same infertile ground. See, e.g., Middleton v. Evatt, 855 F. Supp. 837, 847 (D. S.C. 1994) (finding counsel not deficient since the subject of the alleged failure to cross-examine a witness was covered by the examination of the petitioner's expert witness).

Because there is simply no evidence of deficient performance with respect to trial counsel's cross-examination of Officer Abbott at the suppression hearing, petitioner is not entitled to federal habeas relief with respect to this aspect of his ineffective assistance of counsel claim.

b. Detective Rock

Petitioner next asserts that his counsel also should have cross-examined Detective Rock regarding his allegedly inconsistent suppression hearing testimony. In this regard, at one point during the evidentiary hearing, Detective Rock testified that petitioner did not specifically acknowledge that he understood his Miranda rights. (RT at 367-68.) Later, petitioner emphasizes, Detective Rock testified that petitioner did indicate that he understood his Miranda rights. (RT at 379.) Petitioner maintains that his trial counsel was ineffective in failing to highlight this inconsistency in the testimony. (Pet. (Dkt. No. 73) at 83; claim 20B.8.)

The record before this court reflects that on cross-examination by counsel for petitioner's co-defendant Coville, Detective Rock testified at the suppression hearing that petitioner did not reply in the affirmative when asked if he understood his Miranda rights. (RT at 367.) The detective testified: "Other than refusing to waive his rights, I don't believe there was any other statement made." (Id.) Detective Rock agreed that petitioner had not told him that "he didn't understand; he simply refused to waive his rights." (RT at 367-68.) However, on cross-examination by counsel for petitioner's co-defendant Williams, Detective Rock testified that petitioner had responded affirmatively when asked if he understood his Miranda rights. (RT at 379.)

While petitioner has identified an inconsistency in the detective's testimony at the suppression hearing, that inconsistency concerns an immaterial and collateral matter. The focus of petitioner's motion to suppress evidence was the legality of the search of the car petitioner was driving when he was apprehended, leading to law enforcement's discovery of the wallet as well as the subsequent search of the impounded car, all of which linked petitioner and the other occupants to the Pacoima robbery. See Webster, 54 Cal. 3d at 430; (see also RT 498-506). Petitioner's Miranda advisement took place sometime later, and the legality of that advisement was not placed at issue by petitioner's motion to suppress evidence. Rather, it was undisputed that petitioner invoked his right to remain silent and that his rights in that regard were not violated.

Here, petitioner challenges only his trial counsel's failure to cross-examine a witness regarding inconsistent testimony that witness gave on whether petitioner indicated he understood his Miranda rights. However, "claims that an attorney should have cross-examined further on inconsequential matters do not establish constitutionally deficient performance." Johnson v. Alabama, 256 F.3d 1156, 1186 (11th Cir. 2001). Moreover, "[m]ere criticism of a tactic or strategy is not in itself sufficient to support a charge of inadequate representation." Gustave v. United States, 627 F.2d 901, 904 (9th Cir. 1980). The Sixth Amendment simply does not require counsel to "exploit every potential inconsistency." Roberts v. Singletary, 794 F. Supp. 1106, 1122 (S.D. Fla. 1992). "The issue is not whether counsel attacked a prosecution witness on every conceivable point but whether they subjected his testimony to the adversarial testing that is integral to the trial process." Johnson v. Nagle, 58 F. Supp. 2d 1303, 1356 n.42 (N.D. Ala. 1999), aff'd. 256 F.3d 1156 (11th Cir. 2001).

Here, petitioner's counsel was not required to highlight Detective Rock's inconsistent testimony, now pointed out by petitioner, since it had no bearing on the central issues raised by the defense motion to suppress evidence. In this regard, petitioner has failed to identify any deficiency in his counsel's conduct which was relevant to the trial court's resolution of the motion to suppress evidence. Accordingly, he is not entitled to habeas relief on this aspect of his claim.

Finally, in his Claim 20B.9, petitioner criticizes his trial counsel for not attempting to pursue further a question he posed on re-cross examination that was ruled by the trial court to be beyond the scope of redirect examination. (Pet. at 83; claim 20B.9.) Specifically, at the suppression hearing petitioner's trial counsel sought to ask Detective Rock whether "in the personal property of Defendant Webster, did you find any papers with the identification or the name of Glover or Burke?" (RT at 381.) Petitioner concedes, however, that counsel later asked this question on re-cross examination and received an answer. (RT at 385.) Thus, there can be no claim of deficient performance based upon counsel's alleged failure to pursue the matter further. The record establishes that the very subject petitioner claims should have been pursued was in fact covered by defense counsel.

In sum, petitioner has failed to meet his burden of demonstrating deficient performance on the part of his trial counsel in connection with his examination of witnesses during the evidentiary hearing on the motion to suppress evidence.⁸⁹ The undersigned therefore recommends that petitioner be denied habeas relief on this aspect of his ineffective assistance of counsel claim.

89 Accordingly, the undersigned need not address the prejudice prong of the Strickland test with respect to this aspect of petitioner's ineffective assistance of counsel claim.

F. Ex Post Facto Clause Violation by Application of Proposition 8

In his Claim 18, petitioner contends that the trial court's application of California's Proposition 8 to his motion to suppress evidence violated the constitutional ban on ex post facto laws. (Pet. at 74; Dkt. No. 141 at 36.) In 1982, the voters of California passed an initiative measure known as Proposition 8, which by its terms barred California courts from applying the exclusionary rule to suppress evidence except as required by the United States Constitution. Otherwise, Proposition 8 provided that: "relevant evidence shall not be excluded in any criminal proceeding." In re Lance W., 37 Cal. 3d 873, 879 (1985). Proposition 8 took effect on June 9, 1982, after petitioner's crimes of conviction were committed in August 1981.

At the hearing on petitioner's motion to suppress evidence seized as a result of the traffic stop described above, petitioner and his codefendants urged the trial court to apply California law as it existed prior to the passage of Proposition 8 in deciding that motion. (RT at 510-12.) Indeed, counsel for one of petitioner's codefendants specifically argued that application of Proposition 8 would violate the Ex Post Facto Clause. (Id.) As indicated above, the trial court denied in part and granted in part the defendants' motion to suppress evidence. (RT at 533.) While it is somewhat unclear what law the trial judge applied in ruling on this motion,⁹⁰ it is clearly reflected in the record that in making other pretrial rulings the trial court applied Proposition 8 to the case of petitioner and his co-defendants. (See RT at 625.) Petitioner raised this claim in his second state habeas petition and the California Supreme Court summarily denied that petition.⁹¹

90 In announcing its ruling on the motion to suppress evidence the trial court expressly relied only upon the decision of the United States Supreme Court in United States v. Chadwick, 433 U.S. 1 (1977), subsequently abrogated by California v. Acevedo, 500 U.S. 565 (1991). (RT at 533.)

91 That petition and order were lodged here on December 5, 1996. (See Dkt. No. 100.)

In his petition before this court, petitioner relies on the California Supreme Court's decision in People v. Smith, 34 Cal. 3d 251, 258-63 (1983), in which it held that Proposition 8, which prohibited trial courts from excluding evidence based on violations of state law, altered substantive constitutional rights such that its retroactive application to crimes committed before its effective date offended ex post facto principles. However, the California Supreme Court subsequently called into question its holding in Smith in light of the United States Supreme Court's decision in Collins v. Youngblood, 497 U.S. 37 (1990), which clarified the analysis for determining whether a law violates the Ex Post Facto Clause.⁹² Tapia v. Superior Court, 53 Cal. 3d 282, 294 (1991). Thus, in Tapia the California Supreme Court concluded that the concerns it had raised in its decision in Smith regarding retroactive application of Proposition 8 were unfounded in that the "United States Supreme Court has [since] resolved the analytical difficulty which led us to conclude in Smith that it would be impractical to consider ex post facto challenges to Proposition 8's provisions on a case-by-case basis." Id. at 294. After Collins, a court need not determine "how substantial is the right that the statute impairs and how significant is [the] impairment." Id. Instead, the court may resolve such challenges by applying the categories set forth in Collins.⁹³ However, the California Supreme Court in Tapia did not expressly overrule the decision in Smith since the challenge before it involved Proposition 115, not Proposition 8.⁹⁴

92 In Collins, the Supreme Court held that application of a law is prohibited by the ex post facto clause if it: (1) punishes as a crime an act previously committed, which was innocent when done; (2) makes more burdensome the punishment for a crime after its commission; or (3) deprives one charged with a crime of any defense available under the law at the time when the act was committed. Collins, 497 U.S. at 42.

93 It was formerly held that a law violated the constitutional prohibition against ex post facto legislation if it eliminated a "substantial protection," whether substantive or procedural, existing at the time of the offense. Tapia, 53 Cal. 3d at 292. However, the United States Supreme Court repudiated that analysis in Collins.

94 Proposition 115 altered the procedure for voir dire in criminal prosecutions, among other changes to the state's criminal laws.

Following the decision in Smith, the Ninth Circuit also made clear that the retroactive application of Proposition 8 by California courts did not violate the Ex Post Facto Clause. Toomey v. Bunnell, 898 F.2d 741 (9th Cir. 1990). Similar to petitioner's arguments here, in Toomey, the petitioner argued that his due process rights were violated first by the California courts' application of Proposition 8 to his case, thus subjecting him to an ex post facto law. The Ninth Circuit rejected the claim as "meritless," holding "the prohibition of ex post facto legislation does not apply to changes in state matters of criminal procedure, such as the scope of the exclusionary rule." Id. at 745 (citing Dobbert v. Florida, 432 U.S. 282, 293 (1977) (finding that a law changing the methods used to determine whether the death penalty would be imposed did not violate the Ex Post Facto Clause)).⁹⁵ The court in Toomey also rejected the closely related argument, advanced by petitioner there, that the California courts violated his due process rights by failing to apply California constitutional law which had held pre-Proposition 8 searches unconstitutional under similar facts. Id. The Ninth Circuit emphasized that Proposition 8 has been held on its face not to violate the Due Process Clause, and thus, the court held that "Toomey has no federal constitutional right to have pre-Proposition 8 state case law applied to his case, even if California courts generally have chosen not to apply Proposition 8 retroactively." Id. (citing California v. Greenwood, 486 U.S. 35, 44 (1988)).

95 In this regard, the United States Supreme Court has held that a procedural change does not disadvantage a criminal defendant for purposes of the ex post facto clause because it does not make criminal a previously innocent act, increase the punishment for a crime, or change the proof necessary to convict. Dobbert v. Florida, 432 U.S. 282, 293-94 (1977); see also Doe v. Busby, 661 F.3d 1001, 1023 (9th Cir. 2011) (statute permitting the admission of a type of evidence that was previously excluded for the purpose of showing propensity to commit a crime does not violate ex post facto clause because it does "alter the quantum of evidence needed to convict a defendant"); United States v. McCahill, 765 F.2d 849, 850 (9th Cir. 1985) (change in standard for granting bail pending appeal does not violate ex post facto clause).

The Ninth Circuit's decision in Toomey binds this court. Under that decision petitioner is not entitled to federal habeas relief with respect to his Claim 18 in which he alleges that the state court's application of Proposition 8 to his case violated the Ex Post Facto Clause.

G. Failure to Record and Transcribe Sidebar Conferences

Petitioner complains that the trial court allowed its sidebar conferences with counsel to be unrecorded and not transcribed, resulting in an inadequate record for purposes of appellate review. (Pet. (Dkt. No. 73) at 78 (Claim 19L), 113 (Claim 35B).) Petitioner further claims that his trial counsel was ineffective for not objecting to the unreported sidebar conferences and not requesting a settled statement of the record with respect to those conferences. (Id. at 78.)

In his petition pending before this court, petitioner identifies by citation to the reporter's transcript those points in the trial where sidebar conferences took place. (Id.; see also Dkt. No. 141 at 38-39.) He alleges the "unreported sidebars deprived [him] of the opportunity to assert additional claims in his direct Appeal and in his Petition before this court,"⁹⁶ thus violating his due process rights. (Dkt. No. 141 at 38.) However, petitioner has never explained what those claims on appeal or on collateral review might have been.

96 Petitioner first raised these claims in his second state petition, and it was summarily denied by the California Supreme Court. That petition and order were lodged here on December 5, 1996. (See Dkt. No. 100.)

Previously in this habeas action, in the findings and recommendations addressing the parties' motions for summary judgment, the undersigned found that petitioner had "fail[ed] to proffer a tenable theory as to what unrecorded error might have been involved." (Dkt. No. 176 at 99.) However, because petitioner identified, at least with respect to the guilt phase of his trial, two significant places in the trial proceedings where unrecorded sidebar conferences took place,⁹⁷ the undersigned recommended that respondent's motion for summary judgment with respect to this this claim be denied as "premature."⁹⁸ The undersigned concluded at that time ruling on the motion to be premature because without an evidentiary hearing to determine what value a reporter's transcript or other record of such conferences might have had to petitioner on appeal, the record was potentially incomplete. See Madera v. Risley, 885 F.2d 646, 648 (9th Cir. 1989) (district court conducted an evidentiary hearing to determine whether the record could be sufficiently reconstructed to establish that alleged improprieties during the unrecorded sidebar conference were not committed). Nonetheless, petitioner did not move for an evidentiary hearing with respect to these claims.

97 The undersigned found that petitioner's Claim 19L described two "significant unrecorded exchanges: (1) a sidebar which occurred after the testimony of law enforcement agents, and (2) one which preceded the entry of a stipulation regarding witness Michelle Cram's discussions with police officers prior to receiving legal representation." (Dkt. No. 176 at 99.)

98 The undersigned recommended the granting of summary judgment in favor of respondent as to petitioner's allegations of error based on claimed unrecorded sidebar conferences during the penalty phase of petitioner's trial. (Dkt. No. 176 at 100) (finding "petitioner has not made any showing regarding the value of the transcript with respect to unrecorded sidebar conferences during the penalty phase of his trial"). Again, those findings and recommendations were adopted with respect to this issue. (Dkt. No. 201.)

Preliminarily, the court notes that to the extent petitioner alleges the trial court violated California procedure by holding unreported sidebar conferences, that claim is not cognizable in these proceedings. As noted above, federal habeas relief is only available to a prisoner in custody in violation of the United States Constitution or laws or treaties of the United States. Estelle, 502 U.S. at 68. "A federal court may not issue the writ on the basis of a perceived error of state law." Pulley, 465 U.S. at 41. See also Turner, 281 F.3d at 867.

Moreover, even if petitioner could state a cognizable claim in this regard, the record reflects no violation of state law in connection with the unreported sidebar conferences in this case. At the time of petitioner's trial in 1982 and 1983, California law did not require that all court proceedings be transcribed. People v. Pinholster, 1 Cal. 4th 865, 919-20 (1992) ("[W]e have found no case, nor has defendant cited any, requiring that in every instance [sidebar conferences] must be reported."); see also People v. Tuggles, 179 Cal. App.4th 339, 356 (2009) ("Counsel may object to the admission of evidence in an unreported sidebar conference.") ⁹⁹ In 1985, after petitioner's trial, § 190.9 was added to the California Penal Code and provided for the first time that "in a case in which a death sentence may be imposed 'all proceedings conducted after the effective date of this section in the justice, municipal, and superior courts, including proceedings in chambers, shall be conducted on the record with a court reporter present.'" Pinholster, 1 Cal. 4th at 920. Accordingly, at the time of petitioner's trial, conferences between the trial court and counsel at sidebar and in chambers were a "permissible part of the record on appeal," but it was not required that those informal conferences be placed on the record and available for transcription. Id.

99 At the time of petitioner's trial, California Code of Civil Procedure § 269 provided:

The official reporter of a superior court, or any of them, where there are two or more, must, at the request of either party, or of the court in a civil action or proceeding, and on the order of the court, the district attorney, or the attorney for the defendant in a criminal action or proceeding, take down in shorthand all the testimony, the objections made, the rulings of the court, the exceptions taken, all arraignments, pleas, and sentences of defendants in criminal cases, the arguments of the prosecuting attorney to the jury, and all statements and remarks made and oral instructions given by the judge; and if directed by the court, or requested by either party, must, within such reasonable time after the trial of such case as the court may designate, write out the same, or such specific portions thereof as may be requested, in plain and legible longhand, or by typewriter, or other printing machine, and certify to the same as being correctly reported and transcribed, and when directed by the court, file the same with the clerk of the court.

With respect to petitioner's argument that his due process rights were violated by the failure to have the trial's sidebar conferences reported, the Ninth Circuit has set forth the following test for determining when the unavailability of a transcript of proceedings violates due process, finding that a court assessing such a claim must measure two criteria: "(1) the value of the transcript to the defendant in connection with the appeal or trial for which it is sought; and (2) the availability of alternative devices that would fulfill the same functions as a transcript." Madera, 885 F.2d at 648. With respect to this first criteria, a petitioner is "not required to make a showing of need tailored to the facts of the specific case," so long as he identifies "a tenable theory as to what error might have been involved." Id.

The undersigned has previously found that petitioner had not yet made the requisite showing here. (Dkt. No. 176 at 99-100) (finding that petitioner's general allegations that the court "permitted numerous unrecorded sidebars" failed to proffer a tenable theory as to what unrecorded error might have been involved). Nonetheless, the court granted petitioner leave to seek an evidentiary hearing on this issue, but he has declined to do so. Additionally, petitioner has not offered additional legal argument addressing these claims in his traverse or supporting memorandum of points and authorities. Thus, the record before this court remains the same as it was at the time the undersigned issued its findings and recommendations on the parties' cross-motions for summary judgment. That record is clearly an insufficient basis upon which to grant petitioner the relief he seeks. At no time has petitioner articulated what he believes occurred during the various sidebar conferences that might have been relevant either to his direct appeal or to his collateral attacks on his judgment of conviction and sentence. Simply pointing to parts of the trial transcript that indicate unrecorded sidebar conferences took place is not sufficient. See Scott v. Elo, 302 F.3d 598, 604 (6th Cir. 2002) ( stating that "federal habeas relief based on a missing transcript will only be granted where the petitioner can show prejudice"); White v. State of Florida, Department of Corrections, 939 F.2d 912, 914 (11th Cir. 1991) (stating that "in a federal habeas corpus case brought by a state prisoner, the absence of a perfect transcript does not violate due process absent a showing of specific prejudice"); Bransford v. Brown, 806 F.2d 83, 86 (6th Cir. 1986) (holding that it is not "per se denial of [the] due process right to a fair appeal" when transcripts are missing); Mitchell v. Wyrick, 698 F.2d 940, 941-42 (8th Cir. 1983) ("[Petitioner] has failed to allege any prejudice or harm which resulted from not having a complete transcript."). In order to obtain relief on such a claim a petitioner must present something "more than gross speculation that the transcripts were requisite to a fair appeal." Bransford, 806 F.2d at 86.

Petitioner has not done so here. He has not identified any issue he raised on appeal or claim he brought by way of collateral attack which could have been supported by a transcript of the sidebar conferences at his trial, nor has he identified any new claim or issue that he could have raised had he been provided a transcript of those off-the-record exchanges. The court cannot assume simply because certain sidebar conferences between the trial judge and counsel during petitioner's trial were not reported, that any error exists. Rather, petitioner must offer some "modicum of evidence" to support such a conclusion and he has failed to do so in this case. Id. Petitioner is therefore not entitled to federal habeas relief on his claim that his due process rights were violated due to the fact that sidebar conferences at his trial were not reported.

As noted, petitioner alternatively claims that his trial counsel was ineffective for not objecting to the unreported sidebar conferences and for not requesting a settled statement of the record with respect to those conferences. Again, however, petitioner fails to present any evidence to support this claim either with respect to the deficient performance or the prejudice prong of the test under Strickland. Petitioner has presented no evidence regarding his trial counsel's reasoning in acquiescing to sidebar conferences at trial that were unrecorded and not transcribed. As discussed above, there is a "strong presumption" that counsel's performance fell within the "wide range of reasonable professional assistance," that counsel's actions and omissions were part of sound trial strategy, and that all significant decisions were the result of acceptable professional judgment. Strickland, 466 U.S. at 689-90. Petitioner "must rebut this presumption by proving that his attorney's decision was an unreasonable one under prevailing professional norms and that the challenged action was not sound strategy." Kimmelman, 477 U.S. at 384. Where, as here, the record is silent regarding the reasoning employed, counsel cannot be found ineffective where an objectively reasonable basis for counsel's actions can be ascertained. See Murray, 746 F.3d at 457 (petitioner must "overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy") (quoting Strickland, 466 U.S. at 689); Chandler, 218 F.3d at 1314 ("[C]ounsel cannot be adjudged incompetent for performing in a particular way in a case, as long as the approach taken 'might be considered sound trial strategy.'").

Moreover, it was entirely consistent with California law as it existed at the time of petitioner's trial for his trial counsel to participate in unreported sidebar conferences as well as unreported chambers conferences. The undersigned cannot conclude that petitioner's counsel acted unreasonably in participating in these unreported conferences or by failing to insist that they be reported. As for the alleged failure of trial counsel to move for a settled statement of the sidebar conferences, it is certainly possible that nothing took place during the unreported sidebar conferences that would have been material to petitioner's appeal or that if something of import was discussed that it was later put on the record. In any event, petitioner has not established that his trial counsel acted unreasonably or performed deficiently in failing to seek a settled statement with respect to the unreported sidebar conferences.

Finally, as discussed above, petitioner has failed to make any showing that he was prejudiced by his trial counsel's failure to object to the unreported sidebar conferences or to seek a settled statement of the record with respect to those conferences. Petitioner has not identified any issue or claim that he could have successfully pursued had his counsel objected or obtained a settled statement and thus has failed to establish any prejudice.¹⁰⁰ Therefore, petitioner is not entitled to federal habeas relief on any aspect of his claim based on the failure to record and transcribe sidebar conferences that took place during his trial.

100 Under California law, "[a] settled statement operates to make up for the absence of a reporter's transcript of oral proceedings . . . ." People v. Anderson, 141 Cal. App. 4th 430, 440 (2006).

H. Improper Admission of the Testimony of Michelle Cram and Detective Burchett

Petitioner contends that witness Michelle Cram's statements were obtained through "prosecutorial misconduct"¹⁰¹ and that his constitutional rights were violated by the admission at trial of both her testimony and that of Detective Burchett's regarding Cram's statements to him. (Pet. (Dkt. No. 73) at 95-96 (claims 29C-F), 97-98 (claims 30.A.3-6), 106 -07 (claim 31).) In recommending that the parties' motions for summary judgment on these claims be denied as premature, the undersigned advised petitioner that he would be required to develop facts to support these claims if he wished to pursue them. (Dkt. No. 176 at 107 (finding grounds to defer ruling on the motions pursuant to Fed. R. Civ. P. 56(f) to permit petitioner time to discover facts necessary to support these claims).) Petitioner, however, did not move for an evidentiary hearing with respect to these claims. Thus, no additional facts were developed nor evidence presented by petitioner to substantiate the claims. Based on the court's prior finding, this failure of proof alone is grounds to deny relief. Nonetheless, below the undersigned will briefly discuss the applicable record before this court with regard to these claims.

101 While petitioner broadly uses the term "prosecutorial misconduct" in conjunction with these claims, his allegations do not assert a violation of law based on the prosecutor's actions in this case but rather on certain law enforcement officers' actions, including Detective Burchett, who had contact with Michelle Cram. More specifically, petitioner contends Ms. Cram's statements were obtained by law enforcement officers unlawfully in violation of her Miranda rights and/or were obtained by false promises, and thus, her testimony and the testimony of Detective Burchett about her statements should have been excluded. Accordingly, the court does not treat these claims as raising issues of prosecutorial misconduct but rather the propriety of the admission of certain testimony.

At the time of Burke's killing, Michelle Cram was living on the river with the group of people that included petitioner. Webster, 54 Cal. 3d at 423. Ms. Cram was then only seventeen years old. Id. She was one of two "principal prosecution witnesses" at petitioner's trial and was granted immunity in return for her testimony. Id. Ms. Cram testified at trial in detail about petitioner's plan to kill Burke, take his car and bury him. (See, e.g., RT at 2978-88.) She testified about the murder itself. (See, e.g., RT at 2990-94.) Finally, Ms. Cram testified regarding the group's flight following the murder. (See, e.g., RT at 3006-09.)

At petitioner's trial Detective Burchett testified about speaking briefly with Ms. Cram after the murder, while she was being held at a juvenile hall. (RT at 3090.) On September 8, 1981, several days after the murder and following her arrest on August 31, 1981 (see RT at 3491), Ms. Cram asked to speak to Detective Burchett. (RT at 3091-92.) Detective Burchett testified that he advised Ms. Cram of her right not to answer questions and that he did not threaten her in any way. (RT at 3091-92.) As the detective was about to testify regarding the statement Ms. Cram then gave to him, counsel for petitioner's co-defendant interposed an objection and, in response thereto, the trial court held a hearing to determine whether this evidence could be admitted as a prior consistent statement under California Evidence Code §§ 791 and 1236. (RT at 3092-3106, 3231-82, 3485-3534.)

After some argument on the record, a recess was taken and some further discussion took place off the record. (See RT at 3112-13.) The parties then reached an agreement whereby it was stipulated that Ms. Cram had refused to speak with Detective Burchett on September 3, 1981, and that on September 8, 1981, Ms. Cram contacted an officer at juvenile hall on her own and asked to speak with Detective Burchett. (RT at 3115-17.)

Later, the court heard the following testimony out of the presence of the jury. Detective Wood and Lieutenant Gaida transported Michelle Cram from Barstow, where the vehicle driven by petitioner at the time of his arrest was detained, to Los Angeles on September 2, 1981. (RT at 3223-24, 3246.) During that drive there was no discussion about the case. (RT at 3224, 3248.) In Los Angeles, after receiving information from Bruce Smith, the officers began trying to find out where the victim was and whether he might still be alive and in need of help, without success. (RT at 3226-31, 3252-53.) Lieutenant Gaida decided to speak with Ms. Cram. (RT at 3253.) He did not threaten her or make any promises to her. (RT at 3254.) He did not, however, advise her of her rights at that time because he believed that she had already been advised and because he was not asking about the robbery for which she had been detained by the officers. (RT at 3255.) In speaking to Ms. Cram at this time Lieutenant Gaida only wanted to determine whether there was an injured victim in Sacramento. (RT at 3255.) Ms. Cram spoke with him and described the location of the victim. (RT at 3255, 3261.)

At petitioner's trial Ms. Cram also testified outside the presence of the jury for the purpose of allowing the court to resolve the Evidence Code § 791 issue raised by defense counsel's objection to Detective Burchett's testimony. (RT at 3486.) At that time Ms. Cram testified that she had spoken to law enforcement officers in Barstow at the time of her arrest and in Los Angeles after being transported there. (RT at 3486-87.) According to Cram's testimony the officer in Los Angeles did not threaten her, but he did tell her "it would make it easier on me if I talked." (RT at 3488.) On cross-examination, Cram acknowledged that she thought this meant she would not be charged with the robbery. (RT at 3502.) It was after this statement to her that she told the officer where Burke's body was. (RT at 3488.)

Ms. Cram testified that Detective Burchett met with her on September 3, 1981, in Los Angeles, and advised her of her rights. (RT at 3489.) Ms. Cram declined to speak with him at that time. (RT at 3489.) Several days later, after she had been placed in juvenile hall in Sacramento, she asked an intake officer to contact Detective Burchett for her because she had decided to speak with him. (RT at 3490.) According to Ms. Cram, when she gave her statement to Detective Burchett, no promises had been made to her, and she did not know whether she was going to be prosecuted. (RT at 3490-91, 3496.) She admitted, however, that she was "scared." (RT at 3506.)

On cross-examination by petitioner's trial counsel, Ms. Cram testified that Detective Burchett had told her on September 3, 1981, that "the people that are involved in this case could get the death penalty . . . ." (RT at 3493.) On redirect examination, she testified that she could not remember which officer made this statement about the death penalty. (RT at 3516.)

The trial court found as follows. It was undisputed that Ms. Cram had invoked her privilege against self-incrimination while in Los Angeles. (RT at 3530.) Lieutenant Gaida subsequently questioned her about the location of the victim because it was unknown at that time whether the victim had survived the stabbing and might need assistance. (RT at 3530-31.) Gaida assumed that he would not be able to use her response to his questions about the victim's location as evidence. (RT at 3531.) The trial court expressly found that no offers, promises or threats were made by law enforcement officers to Ms. Cram at that time. (RT at 3532.) After that, Detective Burchett approached Ms. Cram, but she declined to talk to him. (RT at 3532.) Ms. Cram was eventually promised immunity after she gave Detective Burchett her statement on her own initiative. (RT at 3533.) No promises or threats were made to Ms. Cram by officers. (RT at 3533-34.) Based on these findings, the trial court ruled that Detective Burchett would be allowed to testify about Ms. Cram's statement to him and that a limiting instruction to the jury would be given. (RT at 3534.)

Detective Burchett then returned to the witness stand and, in the presence of the jury, testified about the statement Ms. Cram had given him implicating petitioner. (RT at 3584-89.)

In his second state habeas petition petitioner presented his claims alleging that the testimony of Ms. Cram and Detective Burchett was erroneously admitted at his trial.¹⁰² Those claims were summarily rejected.

102 That petition and order were lodged here on December 5, 1996. (See Dkt. No. 100.)

Federal habeas review is generally not available with respect to questions regarding the admissibility of evidence. See Estelle, 502 U.S. at 67-68 ("We have stated many times that federal habeas corpus relief does not lie for errors of state law."); Winzer v. Hall, 494 F.3d 1192, 1198 (9th Cir. 2007) ("State court rulings on the admissibility of evidence generally fall outside the scope of federal habeas relief, which is designed only to remedy violations of federal law."); Little v. Crawford, 449 F.3d 1075, 1082 (9th Cir. 2006) (same). A federal habeas court does not interfere with a state evidentiary ruling unless the challenged evidence was so prejudicial that its admission or exclusion violated fundamental due process and the right to a fair trial. Estelle, 502 U.S. at 67-68; Walters v. Maass, 45 F.3d 1355, 1357 (9th Cir. 1995).

To the extent that petitioner has stated a cognizable federal constitutional claim, the issue presented may fairly be described as whether the admission of Ms. Cram's and Detective Burchett's testimony violated petitioner's fundamental right to a fair trial. The undersigned concludes that it did not. In ruling the testimony admissible, the trial court expressly found that no offers, promises or threats were made by law enforcement officers to Ms. Cram to obtain her statement. (RT at 3532-34.) The trial court further found that Ms. Cram was only promised immunity in exchange for her testimony, after she voluntarily gave Detective Burchett her statement. (RT at 3533.) It was undisputed that Detective Burchett advised Ms. Cram of her Miranda rights prior to taking her statement. (RT at 3091-92, 3489.) Regarding Lieutenant Gaida's questioning, the trial court found that he spoke to Ms. Cram without giving a Miranda advisement but only in order to aid in locating the victim since it was unknown whether the victim might be alive and in need of help. (RT at 3255.) The trial court also held an extensive hearing outside the presence of the jury regarding all of Ms. Cram's contacts with law enforcement officers. Based upon that hearing the trial court concluded there was no evidence of misconduct on the part of any officer. Petitioner has never offered any evidence to the contrary.

Accordingly, the undersigned finds that plaintiff's claims based upon the alleged erroneous admission of the testimony of Ms. Cram and Detective Burchett lack any factual support and are not cognizable and recommends that his request for federal habeas relief in this regard be denied.¹⁰³

103 Because the court finds that petitioner has failed to state a cognizable claim relating to the admission of Ms. Cram's and Detective Burchett's testimony, it need not reach respondent's alternative argument that these claims are Teague-barred.

I. Ineffective Assistance of Counsel during Jury Selection

In Claims 20C, 20D, 39A and 39B of his petition,¹⁰⁴ petitioner contends that his trial counsel provided ineffective assistance by: (1) failing to rehabilitate jurors who were opposed to the death penalty but should not have been excused for cause under the Supreme Court's holding in Witherspoon v. Illinois, 391 U.S. 510 (1968); and (2) in failing to object to the trial court's improper voir dire questioning and jury selection procedures. (Pet. at 84, 118.) Respondent addressed these claims in his answer and memorandum of points and authorities in support thereof. (Dkt. No. 427 at 67-68). Petitioner did not list these claims as being at-issue in his traverse. (Dkt. No. 434 at 2-3) (listing the "remaining claims"). Nor did petitioner address the merits of these claims in any other memoranda filed with the court. It appears that petitioner may have abandoned his Claims 20C, 20D, 39A and 39B, in which case federal habeas relief would be properly denied with respect to them on that basis.

104 Petitioner's Claims 39A and 39B simply duplicate his Claims 20C and 20D.
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In any event, these claims lack merit. See Davis, 384 F.3d at 643 (no deficient performance in declining to exercise unused peremptory challenges on two jurors who expressed views suggesting that they were grappling with their views regarding the death penalty). They are alleged, in their entirety, in two conclusory paragraphs of the pending petition. (Pet. at 84.) Without the allegation of any factual support whatsoever, the claims are properly denied. James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994) ("Conclusory allegations which are not supported by a statement of specific facts do not warrant habeas relief.") It not incumbent on respondent or this court to comb the nearly 2,000 pages of the reporter's transcript of jury selection to identify, first, the prospective jurors who were excused for cause, and second, determine which prospective jurors petitioner believes should not have been excused. Nor is it up to the court to determine which specific jury selection procedures petitioner is seeking to challenge. Finally, given this lack of specificity and showing of any kind, petitioner has clearly failed to establish any prejudice, as is required, even if his trial counsel was somehow deficient in his performance at jury selection.

J. Cumulative Error

Finally, petitioner contends that the various errors of constitutional magnitude that occurred in connection with his trial, when considered cumulatively, deprived him of a fair trial.

Although the United States Supreme Court has not articulated a claim of "cumulative error," the Ninth Circuit has stated that where "no single trial error examined in isolation is sufficiently prejudicial to warrant reversal, the cumulative effect of multiple errors may still prejudice a defendant." United States v. Frederick, 78 F.3d 1370, 1381 (9th Cir. 1996). See also Cunningham v. Wong, 704 F.3d 1143, 1165 (9th Cir.) (and cases cited therein), cert. denied ___ U.S. ___, 134 S. Ct. 169 (2013); Karis, 283 F.3d at 1132 (same).

The Due Process Clause of the Fourteenth Amendment encompasses the right to a fair trial. In re Murchison, 349 U.S. 133, 136 (1955). However, as the Supreme Court has stated:

The thrust of the many constitutional rules governing the conduct of criminal trials is to ensure that those trials lead to fair and correct judgments. Where a reviewing court can find that the record developed at trial establishes guilt beyond a reasonable doubt, the interest in fairness has been satisfied and the judgment should be affirmed. As we have repeatedly stated, "the Constitution entitles a criminal defendant to a fair trial, not a perfect one."

Rose v. Clark, 478 U.S. 570, 579 (1986) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986)).

The undersigned has addressed each of the claims raised by petitioner in his application for federal habeas relief and has found merit with respect to one of those claims - finding that petitioner received ineffective assistance of counsel in connection with the penalty phase of his trial. With respect to petitioner's remaining claims of error, the undersigned has concluded that he is not entitled to federal habeas relief. The undersigned has considered petitioner's claims of error cumulatively as well and does not find that when so considered that they rendered petitioner's trial fundamentally unfair or had a substantial and injurious effect or influence in determining the jury's verdict. See Parle v. Runnels, 505 F.3d 922, 927-28 (9th Cir. 2007).

Therefore, the undersigned recommends that federal habeas relief be denied with respect to petitioner's cumulative error claim.

CONCLUSION

Accordingly, IT IS HEREBY RECOMMENDED that petitioner's petition for a writ of habeas corpus be granted on the grounds that he received ineffective assistance of counsel in connection with the penalty phase of his trial in violation of his rights under the Sixth Amendment, as alleged in Claim 22 of his petition. Federal habeas relief should be denied in all other respects.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within thirty days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to objections shall be served and filed within twenty-one days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). The parties are further advised to address any request for an extension of time to file such objections or reply to objections to the assigned District Judge.

__________

DALE A. DROZD

UNITED STATES MAGISTRATE JUDGE
Dad1 .capital
Webster.final.fr.docx

Id. Relying upon this statement, respondent argues that "[i]t similarly follows that there can be no Eighth Amendment violation if a jury is instructed on one of California's special circumstances in language that duplicates the language of an instruction on a theory of first degree murder." Contrary to respondent's assertion, rejection of petitioner's claim is not compelled by the holding in Lowenfield. There, the Supreme Court specifically distinguished the aggravating circumstance in that case as not being part of the narrowing process. 484 U.S. at 246. In the present case, there is no question that the special circumstances alleged, including the lying in wait special circumstance, were intended to be an aspect of the Eighth Amendment's required narrowing. See People v. Bacigalupo, 6 Cal. 4th 457, 468 (1993) ("Under our death penalty law, therefore, the section 190.2 'special circumstances' perform the same constitutionally required 'narrowing' function as the 'aggravating circumstances' or 'aggravating factors' that some of the other states use in their capital sentencing statutes.").