Beardslee v. Woodford

• Decision Date: 20 March 2003
• Docket Number: No. 01-99007.,01-99007.
• Citation: 358 F.3d 560
• Parties: Donald BEARDSLEE, Petitioner-Appellant, v. Jeanne S. WOODFORD, Warden, of the California State Prison at San Quentin, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

358 F.3d 560

Donald BEARDSLEE, Petitioner-Appellant, v. Jeanne S. WOODFORD, Warden, of the California State Prison at San Quentin, Respondent-Appellee.

No. 01-99007.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 10, 2002 — San Francisco, California.

Filed March 20, 2003.

As Amended on Denial of Rehearing and Rehearing En Banc January 28, 2004.

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Steven S. Lubliner, Law Offices of Steven S. Lubliner, Petaluma, California, for the petitioner-appellant.

Dane R. Gillette, Deputy Attorney General, San Francisco, California, for the respondent-appellee.

Appeal from the United States District Court for the Northern District of California; Saundra B. Armstrong, District Judge, Presiding. D.C. No. CV-92-03990-SBA.

Before: A. Wallace TASHIMA, Sidney R. THOMAS and Richard A. PAEZ, Circuit Judges.

Opinion by Judge Thomas.

ORDER AND AMENDED OPINION ORDER

The panel has voted to deny the petition for rehearing and the petition for rehearing en banc.

The full court has been advised of the petition for rehearing en banc and no Judge has requested a vote on whether to rehear the matter en banc. Fed.R.App.P. 35.

The petition for rehearing and petition for rehearing en banc are DENIED.

The opinion filed March 20, 2003 is amended as follows:

The language beginning with the last paragraph on page 808, and ending with Section B on page 810, is replaced with the following (with footnotes renumbered in the remainder of the opinion):

Recognizing that Gray's behavior might be labeled a tactical decision, Beardslee also claims that the decision to cooperate with the authorities, even if a conscious strategy to generate mitigation, was both completely uninformed and so unreasonable as to be constitutionally deficient. As Beardslee points out, counsel has an obligation to conduct a thorough investigation into the client's background. Williams v. Taylor, 529 U.S. 362, 396, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). However, counsel may also choose not to pursue a particular investigation if such a choice is reasonable. Strickland, 466 U.S. at 691, 104 S.Ct. 2052 ("a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments"). In this case, Gray was faced with a client who had freely confessed extensive involvement with two homicides prior to Gray's involvement in the case. The client's criminal record indisputably contained a facially legitimate prior first degree murder conviction. Given Beardslee's ready admission that he had, in fact, committed the prior murder, Gray's decision not to investigate that crime was objectively reasonable.¹

Beardslee insists that the strategic choice to offer complete cooperation was so misguided that it cannot be constitutionally permissible, largely because it almost always leads to a conviction and death sentence. However, the judge hearing the motion to substitute counsel said he would have adopted the same strategy. In fact, counsel in Strickland faced a similar dilemma and, in effect, made a similar choice. 466 U.S. at 672-74, 104 S.Ct. 2052. Although in hindsight some other strategy may have been preferable, Gray may have reasonably concluded he had little other choice.

Nonetheless, the reasonableness of this decision depends in part upon Gray's awareness of other strategic options, and his failure to conduct a wider investigation raises serious questions about his representation. Beardslee claims that, rather than cooperate with the authorities, Gray could have presented a traditional case in mitigation that centered on Beardslee's difficult family history and psychological state. Beardslee claims that Gray rarely visited him, never had him evaluated by a psychiatrist, and never investigated his family background. The record provides considerable support for the argument that Gray did not conduct a thorough investigation into Beardslee's background and mental state, nor did he make a conscious decision to curtail an incipient investigation. We agree that this level of investigation fell below constitutionally acceptable standards, and Gray could not reasonably have chosen to eschew further mitigation research or select cooperation instead of mitigation. See Wiggins v. Smith, 123 S.Ct. 2527, 2535 ("[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.) (2003); Mayfield v. Woodford, 270 F.3d 915, 927 (9th Cir.2001) ("Judicial deference to counsel is predicated on counsel's performance of sufficient investigation and preparation to make reasonably informed, reasonably sound judgments.").

However, Beardslee cannot show that Gray's failure to investigate potential mitigation strategies actually prejudiced his penalty phase trial, as he must under Strickland First, the record does not support Beardslee's argument that Gray made an explicit choice between cooperation and mitigation. Gray's decision to encourage full cooperation with the authorities did not preclude further mitigation research, nor did his insufficient investigation into Beardslee's background necessarily lead him to encourage more cooperation than he otherwise would have. Although Gray's strategy precluded a guilt phase defense, full cooperation and a substantial case in mitigation are actually quite compatible, as demonstrated by Beardslee's subsequent counsel.

Second, despite his claims to the contrary, Beardslee played a significant role in choosing and shaping the overall cooperation strategy. He argues that Gray never communicated his plan to concede the guilt phase nor explained the consequences of cooperation, but the district court found that the strategy was Beardslee's own choice, a factual finding we review for clear error. Bonin, 59 F.3d at 823. Beardslee provided an extensive statement to detectives about his involvement in the California killings on April 26, 1981, long before Gray was even appointed counsel. In a January 1982 interview with the police, Beardslee agreed that the decision to cooperate was his, that he had authorized Gray to contact Holm, and that he was aware that any testimony could be used against him later in both the guilt and penalty phase trials.² Gray testified that after "substantial discussions" with Beardslee, and consideration of the prior homicide, he concluded that cooperation offered Beardslee the best chance of avoiding the death penalty. Combined with the district court's observations about Beardslee's credibility and demeanor, the record does not support a conclusion that the district court erred in finding that the cooperation tactic originated with Beardslee.³

Third, the record does not support Beardslee's contention that the introduction of evidence about the Missouri homicide depended upon Gray's failure to investigate other mitigation options. Granted, the Missouri homicide was almost certainly critical to the penalty phase outcome. See Beardslee, 53 Cal.3d at 112, 279 Cal.Rptr. 276, 806 P.2d 1311 (dismissing Davenport error as harmless because of the prior homicide); id. at 118-19, 279 Cal.Rptr. 276, 806 P.2d 1311 (Mosk, J., dissenting) (stressing the importance of the prior homicide to the outcome). However, at the time of the Rutherford hearing, competent counsel would not have recognized the importance of excluding detailed information about this homicide.⁴ Moreover, competent counsel probably could not have excluded all mention of the Missouri homicide from the trial. Beardslee disagrees, arguing that without his admissions at the Rutherford trial, "the prosecution would not have been able to prove that he committed the Missouri murder." The record belies this assertion.

The police knew about Beardslee's involvement with the Missouri homicide before Gray was ever appointed counsel. When the police arrived at his door on the day after the killings, he told them he was on parole. During the more extensive testimony on January 2, Beardslee told officers that he had stabbed Laura Griffin in Missouri. Although Gray stopped the questioning after a few minutes, this admission was already on the record before the Rutherford preliminary hearing. Even if Gray had instructed Beardslee to refrain from answering particular questions about the physical details of the crime, the trial judge might not have excluded all reference to the prior homicide. Armed with Beardslee's admission of guilt, prosecutors could have filled in additional details with forensic evidence about the nature of the crime. Psychological experts and doctors who interviewed Beardslee in Missouri and California had significant information about Beardslee's participation in the Missouri killing.⁵ Given the abundance of information about his involvement in the prior homicide, Beardslee cannot demonstrate that counsel's decision to allow him to testify about a crime he had already admitted committing had a substantial impact on the verdict.

Fourth, Beardslee received, at his own request, new trial counsel as well as a seven-month continuance to allow adequate preparation. Balliet conducted a reasonably thorough investigation into Beardslee's background and presented both a guilt phase defense and a substantial case in mitigation. With the exception of claims relating to Balliet's preparation of psychological experts and his failure to object to a prosecutorial argument in the penalty phase, Balliet's performance is not at issue on appeal. Unlike the typical ineffective assistance claimant, therefore, Beardslee eventually received trial counsel who conducted the type of investigation his prior counsel should have conducted in order to provide effective assistance in the first place.⁶

After careful review of the record before us, we conclude that Beardslee cannot make the requisite...