Thompson v. Calderon, s. 95-99014

• Decision Date: 06 March 1997
• Docket Number: 95-99015,Nos. 95-99014,s. 95-99014
• Citation: 109 F.3d 1358
• Parties: Thomas Martin THOMPSON, Petitioner-Appellant-Cross-Appellee, v. Arthur CALDERON, Warden of the California State Prison at San Quentin, Respondent-Appellee-Cross-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1358

109 F.3d 1358

Thomas Martin THOMPSON, Petitioner-Appellant-Cross-Appellee, v. Arthur CALDERON, Warden of the California State Prison at San Quentin, Respondent-Appellee-Cross-Appellant.

Nos. 95-99014, 95-99015.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 20, 1995.

Decided June 19, 1996.

As Amended on Denial of Rehearing

and Rehearing En Banc

March 6, 1997. ^*

86 F.3d 1509, superseded.

Gregory A. Long, Sheppard, Mullin, Richter & Hampton, Los Angeles, California, and Quin Denvir, Sacramento, California, and Andrew Love, Coffin & Love, San Francisco, California, for petitioner-appellant-cross-appellee.

Holly D. Wilkens, Deputy Attorney General, San Diego, California, for respondent-appellee-cross-appellant.

Appeals from the United States District Court for the Central District of California, Richard A. Gadbois, District Judge, Presiding. D.C. No. CV-89-3630-RG.

Before: BEEZER, HALL and LEAVY, Circuit Judges.

BEEZER, Circuit Judge:

Arthur Calderon, as warden and on behalf of the State of California, hereinafter the "State," appeals the district court's partial grant of Thomas Martin Thompson's petition for a writ of habeas corpus. The district court's judgment set aside Thompson's 1983 conviction in California state court for the rape of Ginger Fleischli. Thompson appeals the district court's partial denial of the petition challenging his state court conviction for Fleischli's murder and imposition of a sentence of death. The district court had jurisdiction under 28 U.S.C. § 2254. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253. We reverse the partial grant of Thompson's petition as to the rape charge. We affirm the district court's partial denial of Thompson's petition as to the murder conviction and penalty phase.

I

The evidence, both oral and physical, considered in the state trial court, the decisions made in state appellate proceedings and the matters considered in federal district court are reflected in the record before us.

A.

The state court trial record reveals the evidence presented for and against Thompson.

A California state court jury returned guilty verdicts against Thompson on one count of first-degree murder (Cal.Penal Code §§ 187, 189) and one count of forcible rape (Cal.Penal Code § 261(2)) in connection with the death of Ginger Fleischli. The jury also found true the special circumstance of murder during the commission of a rape (Cal.Penal Code § 190.2(a)(17)(iii)).

In a separate proceeding, David Leitch was found guilty of the second degree murder of Fleischli.

During the summer of 1981, Thompson occupied an apartment with David Leitch in Laguna Beach. Not long before, Ginger Fleischli, the 20-year-old victim, had moved out of the same apartment. Fleischli, who had been sexually involved with Leitch, moved in with Leitch's ex-wife, Tracy Leitch.

On September 11, 1981, Fleischli, Tracy Leitch, David Leitch and Thompson met at a pizza parlor on Balboa Island. They removed to the Sandpiper Inn on Pacific Coast Highway in Laguna Beach, where Thompson and Fleischli remained drinking after David and Tracy Leitch departed. Afshin Kashani joined Fleischli and Thompson at about 9:30 p.m. The three drank and danced, both at the Sandpiper and at a nearby bar, the Boom-Boom Room. Kashani and Thompson also smoked some of Kashani's hashish.

At about 1 a.m., Thompson, Kashani and Fleischli walked back to the apartment occupied by Thompson and Leitch. Kashani and Thompson smoked more hashish. Fleischli departed at about 2 a.m. to purchase some soda at a nearby liquor store. According to Kashani, Thompson indicated to him in Fleischli's absence that he wanted to have sex with Fleischli that night and that Kashani could have her after Thompson left the country. ¹

At trial, Kashani testified that after he departed, he realized that he had forgotten his cigarettes and returned to the apartment. There, a nervous Thompson handed him the cigarettes through the door. Kashani looked for Fleischli at the liquor store; not seeing her, he went home.

Tracy Leitch testified that she went to the apartment the next morning and asked Thompson where Fleischli was. She further testified that he told her that Fleischli had left from the inn with Kashani.

Tracy Leitch again spoke with Thompson that evening about Fleischli's whereabouts. She testified that Thompson answered using the past tense, saying that he had liked Fleischli and that she was a nice girl. The next day, Tracy Leitch filed a missing person's report with the police.

Fleischli's body was found two days later in a grove of trees near an interstate highway. Two sets of footprints appeared near the body. One print matched a wavy soled shoe worn by David Leitch. Investigators could not identify the other footprint, which was smooth.

Fleischli lay buried in dirt, wrapped in an old sleeping bag and a pink blanket that a previous tenant had left in the apartment occupied by Thompson and Leitch. Fibers from the blanket matched fibers found in David Leitch's automobile. A stain on the rope used to tie Fleischli's body matched paint from the trunk of Leitch's vehicle.

Fleischli was stabbed five times in the head near her right ear. A single-edged knife was thrust two and one half inches through Fleischli's ear, penetrated her carotid artery, and caused massive bleeding and ultimately her death. Her head was wrapped with silver duct tape, two towels, a sheet and her jacket. Investigators found her blood in the carpet at the apartment occupied by Leitch and Thompson.

Fleischli's shirt and bra were cut in front and pulled down to her elbows. She wore no shoes, socks or underwear, and her jeans were fully zipped but not buttoned. A vaginal swab revealed semen consistent with Thompson's blood type.

Before Fleischli's body was discovered, Thompson and David Leitch travelled to Mexico together. Leitch returned and was arrested. Mexican authorities located Thompson, who possessed handcuffs at the time of his arrest. Thompson initially claimed that Fleischli had left the apartment with Kashani. Thompson also told police that Fleischli had been stabbed in the head, although the media had not previously reported this information. First denying that he had sexual intercourse with Fleischli, Thompson later asserted that he and Fleischli had consensual intercourse in the apartment.

At the state trial, Dr. Richards, a forensic pathologist, testified that he found no anatomical evidence of rape. The pathologist expressed the opinion that several bruises on Fleischli's body occurred at or near the time of her death.

A police investigator testified that one of Fleischli's bruises resembled injuries he had seen and known to be caused by handcuffs.

Two jailhouse informants, John Del Frate and Edward Fink, testified that Thompson, while in jail, confessed to committing the rape and murder.

Thompson chose to testify despite his attorney's advice to the contrary. Thompson testified that he had sex with Fleischli and then passed out and slept until the next morning. He said that he heard nothing of the murder in the small apartment. He called witnesses who testified that he was a heavy sleeper, but he himself said that he had been awakened in Mexico by the sound of police cocking the hammers of the revolvers they pointed at his head.

The jury found Thompson guilty of rape and murder.

B.

After Thompson's state appeals failed, ² Thompson filed a petition for a writ of habeas corpus in federal court.

The district court conducted an evidentiary hearing on Thompson's claim that his attorney, Ronald Brower, provided ineffective assistance of counsel. Thompson called Dr. Irving Root, a forensic pathologist who testified that he could have given rebuttal evidence in the state trial. A defense investigator contacted Root in 1983, but Brower did not call Root at trial. In 1983, the investigator gave Root sixteen documents, including the autopsy report, and asked for Root's professional opinion about whether rape was likely and what kind of physical trauma is associated with rape. The district court restricted the State's cross-examination of Root concerning his expertise and possible bias.

Brower testified at the evidentiary hearing. He defended his decisions, stating that he did not emphasize the rape charge because he based the defense on Thompson's claim that he did not commit the murder. Brower testified that he had adequately rebutted the forensic evidence and that spending an inordinate amount of time on such evidence would detract from his strategy. Brower also testified that he believed that he conducted sufficient investigation and had adequately impeached the jailhouse informant testimony.

Both sides called attorney expert witnesses to support their arguments regarding ineffective assistance of counsel. One expert, Attorney James Stotler, characterized Brower's representation as high caliber. Attorney Gerald Chaleff, the other expert, termed Brower's representation ineffective and prejudicial to Thompson.

Following post-hearing briefing, the district court granted the petition in part. The court concluded that Brower's failure to impeach Dr. Richards' conclusions and to call a forensic expert, as well as his failure to impeach Fink with testimony concerning numerous prior instances where Fink had informed against others and received favors from law enforcement, rose to the level of ineffective assistance. The district court held that state trial counsel Brower prejudiced Thompson's right to a fair trial on the rape charge. The district court also faulted Brower for failing to further impeach Del Frate. The district court held that the errors combined to produce prejudice. The State appeals this decision.

The district court rejected all of Thompson's other challenges to the murder conviction and to the death penalty phase of the proceedings. Thompson appeals this decision.

II

We are mindful of the limited...