138 F.3d 787 (9th Cir. 1998), 96-99017, Ainsworth v. Calderon

Docket Nº:96-99017, 96-99018.
Citation:138 F.3d 787
Party Name:D.A.R. 2399 Steven King AINSWORTH, Petitioner-Appellee, v. Arthur CALDERON, Warden, Respondent-Appellant. Steven King AINSWORTH, Petitioner-Appellant, v. Arthur CALDERON, Warden, Respondent-Appellee.
Case Date:March 10, 1998
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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138 F.3d 787 (9th Cir. 1998)

D.A.R. 2399

Steven King AINSWORTH, Petitioner-Appellee,


Arthur CALDERON, Warden, Respondent-Appellant.

Steven King AINSWORTH, Petitioner-Appellant,


Arthur CALDERON, Warden, Respondent-Appellee.

Nos. 96-99017, 96-99018.

United States Court of Appeals, Ninth Circuit

March 10, 1998

Argued and Submitted July 14, 1997.

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[Copyrighted Material Omitted]

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J. Robert Jibson, Supervising Deputy Attorney General, Sacramento, CA, for respondent-appellant/cross-appellee.

Quin Denvir, Federal Defender, Sacramento, CA; James S. Thomson, Berkeley, CA, for petitioner-appellee/cross-appellant.

Appeals from the United States District Court for the Eastern District of California; Lawrence K. Karlton, Chief District Judge, Presiding. D.C. No. CV-90-00329-LKK/PAN.

Before: BROWNING, LEAVY, and TROTT, Circuit Judges.

LEAVY, Senior Circuit Judge:

This case arises out of a petition for a writ of habeas corpus as limited by 28 U.S.C. § 2254, filed by Steven King Ainsworth, a California death row inmate. The Warden of San Quentin Prison (the "State") appeals from the district court's grant of relief on Ainsworth's claim that he received ineffective assistance of counsel, and Ainsworth cross-appeals from the district court's denial of relief on his remaining claims. We affirm in part, reverse in part, and remand with instructions to deny the writ.


Seng "Nancy" Huynh was last seen alive by her husband on the afternoon of September 12, 1978, when she left home to work the swing shift at her job in downtown Sacramento. A few minutes after 3:00 p.m., Ainsworth and Donald Gene Bayles entered the public parking lot where Huynh was parking her car. Shouting, "Come on, there's one over there," Ainsworth separated from Bayles. Shortly thereafter, Bayles heard a "pop" sound. Bayles found Ainsworth sitting in the driver's seat of Huynh's car, with Huynh sitting beside Ainsworth. Bayles got in the front seat, and with Huynh seated between the two men, Ainsworth drove Huynh's car out of the parking lot.

Although Bayles claimed not to know it at the time, Ainsworth had shot Huynh in the left hip with a .45 caliber handgun. The bullet passed through her pelvis and lodged against her right hip. Despite Huynh's repeated pleas for help, Ainsworth refused to take her to a doctor or leave her where someone might find and help her. Instead, he confined Huynh to the car's trunk (because of her moaning) and later, the rear seat, where, according to Bayles, he raped her.

Some twenty-four hours after being shot, Huynh died. Ainsworth and Bayles dumped her nearly naked body in a wooded area south of Elk Creek, California. The two men then headed towards San Francisco where they picked up a hitchhiker. After dropping off the hitchhiker in downtown San Francisco, Ainsworth and Bayles separated. Bayles spent the night outdoors and made his way back home to Corning, California.

On September 14, 1978, police discovered Huynh's car in Pacifica, California, less than a mile from Ainsworth's residence. The police found an expended .45 caliber shell casing between the vehicle's front seat cushions, and human blood on the rear seat cushion and on paper bags in the trunk. Several items found in and near the automobile had Ainsworth's and Bayles's fingerprints on them. Two days later, Huynh's purse and brassiere were found at a highway interchange some five miles north of the California-Oregon border. Among the items found in the purse was a time card bearing Huynh's signature and Bayles's fingerprints.

About four months after Huynh's abduction and murder, Bayles was arrested and led authorities to the clearing where he and Ainsworth had hidden the body. The body was in an advanced state of decomposition. On May 3, 1979, police arrested Ainsworth in San Francisco, and charged the two men with first degree murder with two special circumstances, kidnapping and robbery. 1

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The State tried the defendants jointly. The State based its case upon two theories. The first theory, which was abandoned before the close of trial, was that when Ainsworth shot Huynh during the commission of the robbery and kidnapping, he willfully, deliberately, and with premeditation did so to murder her. The State's remaining theory was that after the shooting, and in the course of the robbery and kidnapping, Ainsworth deprived Huynh of medical care with the willfulness, deliberation, and premeditation to murder her, and that the deprivation of medical care in fact caused her death.

Ainsworth did not take the stand. Bayles's testimony was to the effect that Ainsworth was totally responsible for the crimes committed, and that Bayles only accompanied him out of fear for his own life. Ainsworth's defense was that he was not Bayles's companion, but he was instead the hitchhiker picked up by Bayles and another man (the real killer) after Huynh had been murdered and her body disposed of. The jury convicted Ainsworth of first degree murder, found the special circumstances allegations of robbery and kidnapping to be true, and sentenced him to death. Bayles was found guilty of second degree murder.

The Supreme Court of California unanimously affirmed Ainsworth's conviction and sentence. People v. Ainsworth, 45 Cal.3d 984, 248 Cal.Rptr. 568, 755 P.2d 1017 (1988). After exhausting his available state court remedies, Ainsworth filed the instant habeas petition in federal district court. The district court denied relief to Ainsworth on all but his claim that defense counsel was ineffective for failure to elicit expert medical evidence that medical treatment for Huynh might have been futile, therefore the deprivation of medical care could not have constituted premeditated murder. The State appeals from this holding, while Ainsworth cross-appeals from the denial of relief on his other claims.


Standard of Review

We review de novo a district court's decision to grant or deny habeas corpus relief. We also review de novo any underlying state court conclusions of law. While we examine for clear error any factual findings made by the district court in reaching its decision, we must defer to state court findings of fact unless based on an unreasonable determination of the facts in light of the evidence presented.

Gallego v. McDaniel, 124 F.3d 1065, 1069 (9th Cir.1997) (internal citations, quotation, and brackets omitted).


I. The State's Appeal [96-99017]

A. Controlling Law

The first question raised by the State is whether Title I of the Antiterrorism and Effective Death Penalty Act of 1996 (the "AEDPA" or the "Act") governs our review of Ainsworth's habeas petition. 2 The Act does not apply to petitions pending at the time of the AEDPA's enactment unless the State meets certain conditions, e.g., appointment of postconviction counsel in state court proceedings. Lindh v. Murphy, --- U.S. ----, ----, 117 S.Ct. 2059, 2063, 138 L.Ed.2d 481 (1997); Jeffries v. Wood, 114 F.3d 1484, 1487, 1499 (9th Cir.1997) (en banc). Ainsworth's petition was pending at the time of the AEDPA's enactment, and California does not meet the conditions requisite for applying the provisions of the Act to Ainsworth. Accordingly, the Act does not govern our review of this petition.

B. Ineffective Assistance

Before turning to the merits of the State's argument that the district court erred

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by finding Ainsworth's trial counsel to have been ineffective, we must dispose of a preliminary question. The State contends that the district court abused its discretion by admitting expert testimony on the question of ineffective assistance. Regardless of whether the district court should have admitted and considered the two attorneys' sworn declarations as being merely additional argument rather than expert opinions, the State's contention goes too far. See, e.g., Thompson v. Calderon, 109 F.3d 1358, 1364 (9th Cir.) (as amended) (noting, without criticizing, the district court's decision to allow the petitioner and the State to call "attorney expert witnesses to support their arguments regarding ineffective assistance of counsel"), cert. denied, --- U.S. ----, 117 S.Ct. 2426, 138 L.Ed.2d 188 (1997). 3 We find no abuse of discretion in the district court's ruling on this point.

The district court determined that Ainsworth's trial counsel provided ineffective assistance by his failure to prepare and present an adequate defense to the State's theory that Ainsworth murdered Huynh by denying her access to medical care. In order to prevail on this theory, the State had to prove that Ainsworth's restraint of Huynh was the proximate cause of her death, i.e., had she been released, medical personnel could have saved Huynh's life. Ainsworth contends that if defense counsel had investigated and presented the available medical evidence, the jury would have heard evidence that the gunshot wound in the pelvis could have been fatal, even though presumably not intended to be; therefore, any conduct barring access to medical care could not be a proximate cause of death and could not be the basis for a finding of premeditated murder.

We apply a two-prong test to determine whether trial counsel provided ineffective assistance. First, we examine the question of whether trial counsel's performance "fell below an objective standard of reasonableness ... under prevailing professional norms." Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 2064-65, 80 L.Ed.2d 674 (1984). Second, we must determine whether there was resultant prejudice, i.e., whether "there is a...

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