Karis v. Calderon, 98-99025.

Decision Date18 March 2002
Docket NumberNo. 98-99026.,No. 98-99025.,98-99025.,98-99026.
Citation283 F.3d 1117
PartiesJames Leslie KARIS, Petitioner-Appellee, v. Arthur CALDERON, Warden, Respondent-Appellant. James Leslie Karis, Petitioner-Appellant, v. Arthur Calderon, Warden, Respondent-Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Norman C. Hile, Sacramento, CA, for the petitioner.

Paul E. O'Connor, Deputy Attorney General, Sacramento, CA, for the respondent.

Appeal from the United States District Court for the Eastern District of California Lawrence K. Karlton, District Judge, Presiding. D.C. Nos. CV-89-00527-JFM, CV-89-00527-LKK-JFM.

Before HUG, BROWNING and KLEINFELD, Circuit Judges.

Opinion by Judge HUG; Partial Concurrence and Partial Dissent by Judge KLEINFELD

HUG, Circuit Judge:

The Warden of the California State Prison, San Quentin, appeals the district court's order granting in part the 28 U.S.C. § 2254 habeas corpus petition of James Karis, who was convicted in 1982 of first degree murder with special circumstances, attempted murder, kidnaping, and rape. The district court granted the petition as to the penalty phase of the trial based on counsel's failure to investigate and present evidence of child abuse and family violence. Karis cross-appeals the denial of the remainder of the petition. We conclude that the district court properly denied Karis' claims with regard to the conviction of murder. We further agree with the district court that counsel provided Karis constitutionally ineffective assistance at the penalty phase. Accordingly, we AFFIRM.

FACTS

The evidence produced at the state court trial presented the following facts. On July 8, 1981, Ms. P and Ms. V were taking a brief walk during their midmorning break from their jobs in Placerville, California. At approximately 10:30 a.m., as they were walking under an overpass, a man ordered the women at gunpoint to enter his car. They entered the back seat and the man drove some distance out of town, drove off the road, stopped the car, and ordered the women to walk down a dirt path to a creek bed. They followed the creek bed to an area where the man ordered the women to disrobe.

Ms. P was gagged and her hands tied and Ms. V was raped. The man then ordered the women to continue walking down the creek bed. When they reached a large hole, the man ordered both women to get into the hole. In reply to Ms. V's plea that she not be killed, the man stated that he had to kill them so that he would not be killed. The women turned away from the man and Ms. V heard five shots. She felt a numbness in her neck after the second shot and felt the impact of a second bullet in her neck with the fourth shot. She feigned death and heard the man throwing rocks on her and Ms. P.

After hearing him leave, Ms. V waited several minutes before making her way out to the road where she flagged down a truck driver who then flagged down a car on the highway to take Ms. V to Chili Bar where the sheriff and medical help were summoned. Ms. V described Ms. P's location to the truck driver who remained near the highway to guide emergency personnel. Shortly thereafter, a paramedic examined Ms. P and determined that she was dead. The cause of death was one of three bullet wounds and a fracture through the base of her skull.

The truck driver testified that Ms. V described her assailant as a man with long dark hair and a green car. According to an officer at Chili Bar, Ms. V described her assailant as "a male Mexican, 5'8" to 5'10", heavy build, with a moustache and at least a one-day-old beard." She also told him that her assailant drove a "ratty old big car, green in color, two-door." The officer who accompanied her in the ambulance from Chili Bar to the local hospital testified that she described her assailant "as having dark, shoulder-length hair, medium-dark moustache, five foot eight to ten inches tall, wearing a white T-shirt, blue jeans, and possibly of Mexican descent." The officer who interviewed Ms. V in the hospital emergency room testified that she gave a similar description of her assailant and his car.

Ms. V testified that one or two days after the shooting she told a police detective that her assailant "was a little taller than I was, around five ten, and that he had shoulder length hair, maybe a little bit longer, and that it was dark hair, black hair, and it was curly or wavy, and that he had a moustache that was like a Fu Manchu style, and he hadn't shaved for a couple of days." She also testified that on that same occasion she stated that she didn't know his nationality, but it could be Mexican, Indian or Italian — that he had dark skin and dark hair.

Analysis of a stain on Ms. V's underwear indicated the presence of seminal fluid. The stain was also tested for phosphoglucomutase (PGM) enzyme type and for blood type. At trial, an expert called by the prosecution testified that PGM was a genetic marker found in body fluids and that the PGM enzyme type of the seminal fluid was the same as Karis'. The same expert also testified that Karis was a non-secretor and so, his AB blood type would not show up in other body fluids such as semen or saliva and that only Ms. V's blood type was found in the stain. This expert further testified that 4% of the population were non-secretors with Karis' PGM type. On cross-examination the expert did acknowledge that approximately one out of four persons in the population could have been the source of the seminal fluid. Ms. V's husband, however, was ruled out as a source of the fluid.

Ms. V had initially described the car in which she had been abducted as an old, large green two-door car of American make. At trial, she testified that the car was an older, large, two door car, which was two-tone and light green with a dark interior and a vinyl top. Detective Southern testified that on July 8, Ms. V also told officers about objects in the car. At trial, she testified that she had seen a black cool cushion and two rectangular pillows, one a dark color and the other a bright color. On July 9, officers impounded Karis' car and removed three pillows from the back seat. On July 10, Ms. V was shown the pillows and stated that they looked like the ones she had seen in the car.

Karis' neighbor David Marden testified that, on the afternoon that was determined to be July 8, 1981, he saw Karis driving up to the house much faster than he had ever seen him drive before. On the evening of July 8, Karis' brother Kevin Jones and Kevin's girlfriend, Dana Skelton, drove to the house that Karis shared with his mother and Kevin. Dana testified that after Kevin stopped to speak to a deputy sheriff parked at the foot of the driveway, he drove up to the house and spoke to his mother. He returned to the car and told Dana that he had to take her home and that they had to take Karis with them in the trunk of the car because Karis was dealing in cocaine. After they left the house with Karis hidden in the trunk, Karis joined Dana and Kevin in the passenger compartment of the car. Dana testified that Karis had a moustache and a little bit of a beard at that time. They drove to Dana's grandmother's home where they spent the night. The next morning, July 9, Kevin promised Dana that he would drive her to work but later told her that he could not because Karis had to leave. Ten minutes later, the two men left. Dana's grandmother described the man who had stayed at her home as having a fairly long moustache and dark hair. She identified a photograph of Karis.

Around noon on that day, July 9, Karis arrived at the home of friends Peggy Steuben and Jay Raugust in Rancho Cordova. Steuben testified that Karis was quiet, withdrawn, and clean shaven. Karis asked if he could stay with them a couple of days and Steuben refused. Karis left around 7:30 that evening. Steuben also testified that Karis earlier had visited Rancho Cordova on July 4, 1981. During that visit she and Karis talked about keeping a gun for self-defense. Karis told her "[t]hat because of where he had been, in prison, that, you know he would never want to go back there again and it was self-defense to not leave a — you know, to eliminate anybody that could send him back there." During the discussion Steuben commented that it would be a particularly horrible thing to kill a rape victim and Karis responded "[t]hat he — leaving any witness to testify, that — that he had committed any certain crime or anybody else had committed any certain crime would be sending him back to prison, and it would be necessary to not leave a witness."

Prior to trial, Kevin Jones suffered a stroke. By stipulation that he was mentally and physically incompetent to testify, portions of his preliminary hearing testimony were read to the jury. Parts of Kevin's testimony differed significantly from trial testimony of Karis and Dana Skelton. Kevin testified that on the morning of July 8, 1981, the day of the murder, he, Karis and their mother went to Placerville to cash a check at the Lucky Market, and then went to the post office to buy a money order. Kevin stated that they drove back to their home between 9:30 and 10:00 that morning and that he and Karis remained at home the entire day except for checking the mail and going out for a beer. Kevin also stated that Karis had shaved his moustache off a week before. Kevin claimed to have spent the night of July 8 with Dana Skelton, arrived home the next morning around 8:00 a.m., and driven Karis to the bus station around 9:00 a.m.

Kevin was interviewed several times before trial and officers testified that Kevin made contradictory statements. On the night of July 9, 1981, he told an officer that when he woke at 10:00 a.m. on July 8, the day of the murder, the car was gone. He also told officers that Karis had a moustache on the morning of July 8, but shaved it off the following morning telling...

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