Siripongs v. Calderon

• Citation: 35 F.3d 1308
• Decision Date: 13 October 1994
• Docket Number: No. 92-56498,92-56498
• Parties: Jaturun SIRIPONGS, Petitioner-Appellant, v. Arthur CALDERON, Warden, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1308

35 F.3d 1308

Jaturun SIRIPONGS, Petitioner-Appellant, v. Arthur CALDERON, Warden, Respondent-Appellee.

No. 92-56498.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 21, 1993.

Decided July 1, 1994.

As Amended on Denial of Petitions

for Rehearing and Suggestions

for Rehearing En Banc Oct. 13, 1994.

Donald L. Morrow and Linda Schilling, Paul, Hastings, Janofsky & Walker, Costa Mesa, CA, for petitioner-appellant.

Laura Whitcomb Halgren, Deputy Atty. Gen., San Diego, CA, for respondent-appellee.

Janice L. Bergmann, California Appellate Project, San Francisco, CA, for amicus.

Appeal from the United States District Court for the Central District of California.

Before: SCHROEDER, PREGERSON, and FERNANDEZ, Circuit Judges.

Opinion by Judge SCHROEDER; Concurrence and Dissent by Judge FERNANDEZ.

SCHROEDER, Circuit Judge:

The petitioner-appellant Jaturun Siripongs, a native of Thailand, was convicted of first-degree murder and sentenced to death for a violent robbery/double homicide in a Los Angeles Asian specialty food market. His state appeal and two state petitions for collateral relief were unavailing, and he unsuccessfully sought habeas relief in the district court. The critical issue in this appeal is whether he is entitled to an evidentiary hearing in the district court on his claims of ineffective assistance of counsel.

It is undisputed that Siripongs' trial counsel put on no defense at the guilt phase of the trial. In addition, trial counsel conducted little or no investigation into the possibility of contending, either at the guilt phase or at the penalty phase, that the murders had been committed by an accomplice. Counsel conducted no inquiry into Siripongs' background in Thailand, where Siripongs was born, raised and lived until two years before the crimes in question. It is further undisputed that counsel had never before tried a capital case, and that counsel was running for Congress during most of the time that he should have been preparing the case for trial.

In a capital case, a habeas petitioner who asserts a colorable claim to relief, and who has never been given the opportunity to develop a factual record on that claim, is entitled to an evidentiary hearing in federal court. Smith v. McCormick, 914 F.2d 1153, 1170 (9th Cir.1990); see Hendricks v. Vasquez, 974 F.2d 1099, 1103, 1109-10 (9th Cir.1992).

Siripongs has never received an evidentiary hearing in state or federal court, and has raised a colorable claim. We therefore hold that Siripongs is entitled to an evidentiary hearing in order to develop the record on his ineffective assistance of counsel claims.

Siripongs presents a number of additional contentions of trial court error that require no further evidentiary development. We agree with the district court that these contentions do not warrant habeas corpus relief and otherwise affirm the judgment of the district court.

FACTS AND PROCEDURAL BACKGROUND

The evidence introduced against Siripongs at trial was all circumstantial but voluminous. The details are contained in the opinion of the California Supreme Court affirming the conviction and sentence. People v. Siripongs, 45 Cal.3d 548, 247 Cal.Rptr. 729, 732-37, 754 P.2d 1306, 1309-13 (1988), cert. denied, 488 U.S. 1019, 109 S.Ct. 820, 102 L.Ed.2d 810 (1989). We only summarize.

Surachai ("Jack") and Packovan ("Pat") Wattanaporn owned the Pantai Market in Garden Grove, California. Quach Nguyen worked as a clerk at the market in December 1981. At approximately 2:00 p.m. on December 15, 1981, Jack Wattanaporn discovered the bodies of Pat Wattanaporn and Quach Nguyen on the floor of the storeroom of the market. Pat had been strangled to death, and Nguyen had died of multiple stab wounds. Pat had used the market storeroom to buy and sell jewelry. Jewelry that Pat had been seen wearing on the day of the murders was missing from the crime scene.

Near the bodies was a letter addressed to a sister of Siripongs' girlfriend, Sainam Peung "Peung" Vecharungspri. The sister was known as "Noon." Evidence at trial established that Noon had placed the letter in her jacket, which she kept at Siripongs' house.

Siripongs arrived at Peung's house at 3 p.m. on the afternoon of December 15 with his fingers bandaged and bleeding. He claimed that he had cut himself at work that day. Later that afternoon Siripongs called a friend whom he owed money and asked the friend to help him sell some jewelry. This jewelry later was identified as belonging to Pat.

The following day Pat's purse was found in a dumpster some distance from the market. The dumpster was a short distance from Peung's house in a shopping complex housing the laundromat used by Siripongs. Also in the dumpster were the jacket owned by Noon that had contained the letter found at the crime scene, a blood-stained shirt, and other incriminating articles, including a cord similar to a cord which was found wrapped around Nguyen's arm at the crime scene, hair that was consistent with Pat's hair, and items from the Pantai Market. An analysis of the blood stained items revealed that the blood on the items was consistent with Siripongs' blood, although a conclusive match could not be made.

Siripongs, who worked as an optical lens grinder, had not reported to work on the day of the murder. He returned to work on December 17th. Later that afternoon, Siripongs attempted to make a purchase using a credit card issued to Jack Wattanaporn, and it was a credit check on that card which led to Siripongs' arrest. After his arrest, police discovered other credit cards issued to Pat and Jack in Siripongs' wallet.

Four hours after his arrest, Siripongs was allowed to make his first phone call, which he conducted in Thai. His conversation was recorded, on a concealed tape recorder, by an officer who stood next to Siripongs while he made the call. In the conversation, Siripongs asked Peung to go to his house to find and remove jewelry which had been worn by Pat and other items from the Pantai Market. A search of Siripongs' car and residence revealed more jewelry matching descriptions of Pat's jewelry, as well as department store receipts dated after her death but bearing her name.

At trial, Siripongs put forth no affirmative defense and called no witnesses. Counsel's primary defense tactic was to cross examine the state's witnesses and criticize the state's evidence. Defense counsel's presentation at the penalty phase was very brief. Counsel called Siripongs' employer, who stated that the defendant was a good worker, and also The jury convicted Siripongs of murder and sentenced him to death. The California Supreme Court, on direct appeal, affirmed the conviction and sentence. People v. Siripongs, 45 Cal.3d 548, 247 Cal.Rptr. 729, 754 P.2d 1306 (1988). The United States Supreme Court denied certiorari. Siripongs v. California, 488 U.S. 1019, 109 S.Ct. 820, 102 L.Ed.2d 810 (1989).

called witnesses to testify that since his arrest, Siripongs had been a model prisoner. The defense presented no testimony from Siripongs' family or friends, although Siripongs' mother was present in the courtroom during the penalty phase.

Siripongs filed a petition for writ of habeas corpus, and an accompanying motion for discovery, in the California Supreme Court, raising, among other contentions, claims of ineffective assistance of trial counsel at the guilt and penalty phases. The petition was denied on the merits without a hearing.

Siripongs raised the ineffective assistance of counsel claims, and several additional claims, in his first federal court petition for writ of habeas corpus. The district court stayed the proceedings to permit Siripongs to exhaust the new claims in state court in a second state petition for collateral relief. In the second state petition, Siripongs raised claims of interpreter bias, trial judge bias and ineffective assistance of counsel for counsel's failure to move for a mistrial on grounds of juror misconduct.

The California Supreme Court denied Siripongs' second petition without a hearing, stating in full:

Petition for writ of habeas corpus DENIED both for reasons of procedural default and on the merits. Petitioner's motion for 'post-trial discovery' is denied (People v. Gonzalez (1990) 51 Cal.3d 1179, 1261 [275 Cal.Rptr. 729, 800 P.2d 1159].

The parties and amicus curiae have given the form of the California Supreme Court's order a great deal of attention in this appeal. The dispute is whether the California Supreme Court should be regarded as having foreclosed federal court litigation of the claims made in the second petition by disposing of them on an independent and adequate state ground.

Following the California Supreme Court's denial of the second petition, Siripongs filed, in May 1991, a motion to conduct discovery in connection with his pending federal habeas petition. The district court granted Siripongs' motion to a limited extent, ordering that he be permitted to take the deposition of his trial counsel. Siripongs also sought an evidentiary hearing on his claims. The state opposed the motion for evidentiary hearing and moved for summary judgment. Siripongs' request for a hearing was supported by affidavits of expert witnesses as to the inadequacy of trial counsel's preparation and performance at both the guilt and penalty phases of the trial court proceedings. The district court did not hold a hearing, and, in October 1992, granted the state's motion for summary judgment and denied all of Siripongs' pending motions and requests for discovery. The district court granted Siripongs' request for a certificate of probable cause and stayed his execution for the pursuit of this appeal.

INEFFECTIVE ASSISTANCE OF COUNSEL

Siripongs seeks an evidentiary hearing on his claims of ineffective assistance of counsel at both the guilt and penalty phases of his trial. As previously noted, these claims were summarily denied by the California Supreme Court in...