163 F.3d 1073 (9th Cir. 1998), 97-99023, Bean v. Calderon

Docket Nº:97-99023, 97-99024.
Citation:163 F.3d 1073
Party Name:D.A.R. 12,770 Anthony Cornell BEAN, Petitioner-Appellee/Cross-Appellant, v. Arthur CALDERON, Warden, Respondent-Appellant/Cross-Appellee.
Case Date:December 15, 1998
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1073

163 F.3d 1073 (9th Cir. 1998)

D.A.R. 12,770

Anthony Cornell BEAN, Petitioner-Appellee/Cross-Appellant,

v.

Arthur CALDERON, Warden, Respondent-Appellant/Cross-Appellee.

Nos. 97-99023, 97-99024.

United States Court of Appeals, Ninth Circuit

December 15, 1998

Argued and Submitted June 25, 1998.

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Andrea Miller, Nageley & Meredith, Inc., Sacramento, California, Andrew S. Love, Law Offices of Coffin & Love, San Francisco, California, for petitioner-appellee/cross-appellant.

Clayton S. Tanaka, Deputy Attorney General, Sacramento, California, for respondent-appellant/cross-appellee.

Appeal from the United States District Court for the Eastern District of California' William B. Shubb, District Judge, Presiding. D.C. No. CV-S-90-0648 WBS GGH.

Before: CANBY, O'SCANNLAIN, and THOMAS, Circuit Judges.

Opinion by Judge THOMAS; Partial Concurrence and Partial Dissent by Judge O'SCANNLAIN.

THOMAS, Circuit Judge:

Anthony Cornell Bean was convicted of the first-degree murder, robbery, and burglary of Beth Schatz and Eileen Fox and sentenced

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to death. After the district court granted Bean's habeas petition as to his sentence but denied habeas relief as to his conviction, Warden Calderon appealed and Bean cross-appealed. We reverse the district court's decision as to Bean's conviction for the Fox charges, but otherwise affirm.

I

A

At some point during the early morning hours of June 26, 1980, a disturbance awakened George Schatz in his mobile home in Sacramento, California. Rising from his bed, he saw two young African-American men in his bedroom. One of these men ordered him to lie back down on the bed and forbade him to get up, while the other stood across the room. Schatz lay back down on his bed and stared straight up. He realized at this juncture that his fifty-six-year-old wife, Beth, was not in the bed with him. As Schatz lay without moving in his bed, he heard the noise that the two men were making as they moved around his home, and eventually lost consciousness.

When he regained consciousness, he no longer heard any noises. He rose, walked around the bed, and found his wife lying on the floor on her back, naked. Schatz tried to awaken her, only to discover that she was dead. He then called the police, who took him to the hospital. Once there, he realized for the first time that he had been injured: he had sustained six wounds to the head area and one to his neck, a broken nose, and two black eyes. Beth Schatz had died from multiple head wounds, with injuries concentrated on the left side of her skull.

Several items of property were missing from the Schatzes' home, including a television set, a deer rifle, a shotgun, George Schatz's wallet, a money clip with $120, a jewelry box containing several pieces of jewelry, and a 1977 Oldsmobile Cutlass automobile. At approximately 9 a.m. on June 26, 1980, the Sacramento Police Department (the "police") recovered the Schatzes' abandoned automobile from a vacant lot about two miles' distance from their home. The police found a ball-peen hammer on the front floorboard of the car, near the passenger seat. A subsequent investigation revealed the presence of human blood and hair on the hammer.

After examining the crime scene, the police found "strong indication[s]" that shoes Bean and his brother owned and shared had made shoe prints in a flower bed on the south side of the Schatzes' residence. In addition, a fingerprint on a kitchen window screen that the intruders had removed and a palm print on the kitchen counter were positively identified as belonging to Bean.

On July 11, 1980, the police received an anonymous telephone call from a woman who claimed to have personal knowledge that Bean was responsible for the Schatz crimes. The police later learned that this woman had no personal knowledge of the crime, but was merely relaying facts she claimed to have learned from her sister, Cecelia Anders. Anders gave a statement to the police and ultimately testified at Bean's trial. She asserted that Bean and Michael Hamilton had come to her apartment on June 26, 1980, during the early morning. Bean told Anders that he probably had killed a woman that night, saying, "I don't know if I killed that bitch," and "I don't know if she's dead or not." Bean also admitted that he had stolen a rifle and a television set, described the scene of the crimes as a mobile home park, and accurately described the location of the Schatzes' stolen car. Norman Hamilton, Michael's brother and the father of Anders' child, was staying at Anders' apartment on June 26. He also made a statement to the police and testified at trial. In the former, Norman denied hearing Bean admit to hitting or killing a woman, and based any knowledge about the incident on statements by his brother, Michael. However, at trial, Norman claimed Bean had recounted beating a woman.

Bean's defense relied on his own testimony that he had attempted to burglarize the Schatzes' residence the morning immediately preceding the homicide, leaving a fingerprint on a window screen and a palm print on the kitchen counter adjacent to his point of entry. The burglary was aborted when Bean heard a toilet flush and became apprehensive that he would be discovered. He testified that he was not present at any time during

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the Schatz crimes; nor did he attempt to blame Michael Hamilton for those crimes.

B

On June 29, 1980, Eileen Fox, a sixty-five-year-old woman, was found dead in her Sacramento, California residence. After being alerted by Fox's neighbor, the police arrived to find Fox's front door partially open and what appeared to be half of a pair of broken glasses lying on the front porch. Upon entering Fox's home, the police found Fox's dead body lying on the living-room floor just inside the front door, surrounded by the contents of a torn grocery bag. The police also discovered the other half of the broken glasses. Lying next to Fox's body was a pair of brown, plastic-rimmed sunglasses.

Fox's death had resulted from a heart attack precipitated by multiple injuries to the face, ear, and head area. The coroner who examined Fox opined that she had been beaten by a blunt object, such as a human fist or foot. On cross-examination, the coroner agreed that all of Fox's head injuries were consistent with an unbroken fall, except for a single injury to her left ear.

The next day, June 30, 1980, Fox's car was found with the keys in the ignition, in a parking lot approximately one and one-quarter miles from her home. Her purse was lying on the passenger side of the front floorboard, and her wallet was retrieved from an ivy bed not far from where the car was parked.

At trial, the State of California presented evidence of fingerprints that had been recovered from the sunglasses lying beside Fox's body. The prosecution's latent print expert took photographs of one of the lenses of the sunglasses before attempting to lift any latent print. After taking these photographs, he made three "lifts" from the glass lens by applying fingerprint lift tape. The tape containing these "lifts" was placed on a fingerprint card, and the examining officers determined that the "lifts" could not contribute to any identification. After the third lift, photographs were taken of the remaining residue on the lens. Based on one of these photographs, four prosecution experts identified the print as matching the third finger of Bean's left hand. However, Bean's experts contested this identification, all agreeing that the print originally visible on the sunglasses was a composite of several overlaid prints.

In addition to this fingerprint evidence, the State called Fox's neighbor, Mary Williams, as a witness. Williams testified that she had seen Bean sitting in bushes in the park across the street from Fox's residence on three separate occasions. The last time she had noticed Bean had been three weeks before Fox's murder.

C

After being presented with evidence on both the Schatz and Fox crimes, a Sacramento County jury convicted Bean of the following charges: (1) two counts of first degree murder for Beth Schatz and Eileen Fox; (2) one count of assault with a deadly weapon on George Schatz; (3) two counts of burglary; and (4) two counts of robbery. The jury also found true three special circumstances: (1) the murders were committed during the commission of a robbery; (2) the murders were committed during the commission of a burglary; and (3) both murders were of the first degree and Bean stood convicted of multiple murder.

During the penalty phase of the trial, the prosecution presented two aggravating circumstances: a prior burglary conviction, and an incident in which Bean allegedly fired a sawed-off shotgun at two men in a car. The jury subsequently returned a verdict of death for the Schatz murder, and a verdict of life in prison without the possibility of parole for the Fox murder.

On direct appeal, the California Supreme Court affirmed Bean's conviction and sentence in their entirety. See People v. Bean, 46 Cal.3d 919, 251 Cal.Rptr. 467, 760 P.2d 996 (Cal.1988), cert. denied, 494 U.S. 1038, 110 S.Ct. 1499, 108 L.Ed.2d 634 (1990). After the Superior Court of Sacramento County scheduled Bean's execution, the United States District Court for the Eastern District of California entered an order staying the execution to permit appointment of counsel to represent Bean in federal habeas corpus proceedings.

Bean then filed a federal petition for writ of habeas corpus under 28 U.S.C. § 2254,

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whereupon the federal district court granted a stay of execution to permit Bean to exhaust his state remedies. In response, Bean filed a petition for writ of habeas corpus in the California...

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