Allen v. Woodford

• Decision Date: 06 May 2004
• Docket Number: No. 01-99011.,01-99011.
• Citation: 366 F.3d 823
• Parties: Clarence Ray ALLEN, 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

366 F.3d 823

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

No. 01-99011.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 12, 2003.

Decided May 6, 2004.

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Michael Satris, Bolinas, CA, and Michael Thorman, Hayward, CA, for the appellant.

Ward A. Campbell, Supervising Deputy Attorney General, Sacramento, CA, for the appellee.

Before: GRABER, WARDLAW, and CLIFTON, Circuit Judges.

WARDLAW, Circuit Judge:

Clarence Ray Allen appeals the denial of his petition for writ of habeas corpus by the United States District Court for the Eastern District of California. He asserts numerous claims of constitutional error in both the guilt and penalty phases of his 1982 trial for the Fran's Market triple-murder and related conspiracy to murder.

The evidence of Allen's guilt for the crimes of conviction is overwhelming. His own testimony provided perhaps the most incriminating evidence of that of the 58 witnesses who testified over 23 days during his jury trial, which ended in convictions for triple-murder and conspiracy to murder seven people, and a judgment imposing a sentence of death. Just as overwhelmingly plain, however, is that Allen's representation at the penalty phase of his trial fell below an objective standard of reasonableness. Trial counsel admits he did nothing to prepare for the penalty phase until after the guilty verdicts were rendered, and even then, in what little time was available, he failed sufficiently to investigate and adequately present available mitigating evidence.

We must decide whether, if counsel had adequately investigated, presented and explained the available mitigating evidence, there is a reasonable probability that the result of Allen's penalty phase would have been a sentence other than death. Having carefully and independently weighed the mitigating evidence, "both that which was introduced and that which was omitted or understated," Mayfield v. Woodford, 270 F.3d 915, 928 (9th Cir.2001) (en banc), against the extraordinarily damaging aggravating evidence, we are compelled to conclude, as did the district court before us, that it is not reasonably probable that even one juror would have held out for a life sentence over death. Given that Allen had just been convicted by his death-qualified jury of orchestrating — from jail — a conspiracy to murder seven people, and succeeding in the actual killing of three, all to retaliate for their prior testimony against him and to prevent future damaging testimony, and that the potential evidence in mitigation was neither explanatory nor exculpatory and was provided by persons unaware of Allen's numerous horrendous crimes or who were otherwise impeachable, we must conclude that there is no reasonable probability, i.e., "a probability sufficient to undermine confidence in the outcome," Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), that the jury would have reached a different result. We therefore affirm.

I. Background¹

The "sordid events," Allen, 42 Cal.3d at 1236, 232 Cal.Rptr. 849, 729 P.2d 115, underlying this appeal were set in motion in June 1974, when Allen decided to burglarize Fran's Market in Fresno, California. Ultimately, Allen was convicted of the burglary and related first-degree murder of Mary Sue Kitts, the crime for which he was serving a life sentence when he committed his current crimes of conviction in an effort to silence the witnesses who testified at the 1977 Fran's Market/Kitts murder trial.

A. The Fran's Market Burglary and Murder of Mary Sue Kitts

Allen had known the owners of Fran's Market, Ray and Frances Schletewitz, for more than a decade. To assist in the burglary, Allen enlisted the help of his son Roger, as well as Carl Mayfield and Charles Jones, employees in Allen's security guard business and frequent coconspirators in prior criminal pursuits.

On the night of the burglary, Roger Allen invited the Schletewitz's 19-year-old son, Bryon, to an evening swimming party at Allen's house. There, Bryon's keys to Fran's Market were taken from his pants pocket while he was swimming. Later in the evening, while Bryon was on a date arranged by Allen with 17-year-old Mary Sue Kitts, son Roger's live-in girlfriend at the time, Allen, Mayfield, and Jones used Bryon's keys to burglarize his parents' market. They removed a safe from the market and divided the $500 in cash and over $10,000 in money orders found inside. With help from his son Roger, his girlfriend Shirley Doeckel, Kitts, and two others — Barbara Carrasco and her stepson Eugene Leland ("Lee") Furrow — Allen cashed the stolen money orders at southern California shopping centers by using false identifications. While the stolen money orders continued to be cashed, Kitts contacted Bryon Schletewitz and tearfully confessed to him that she had helped to cash the money orders stolen from Fran's Market by Allen.

Bryon confronted Roger Allen with this story, and Roger admitted that the Allen family had burglarized the store. Bryon, in turn, confirmed to Roger that Kitts had been the one to confess the burglary to him. When Roger told his father of Bryon's accusation based on Kitts's confession, Allen responded that Bryon and Kitts would have to be"dealt with." Allen next told Ray and Frances Schletewitz that he had not burglarized their store and that he loved Bryon like his own son. He also threatened and intimidated the Schletewitzes, however, by hinting that someone was planning to burn down their house and by having Roger pay Furrow $50 to fire several gunshots at their home one midnight.

Meanwhile, Allen called a meeting at his house and told Jones, Mayfield, and Furrow that Kitts had been talking too much and should be killed. Allen called for a vote on the issue of Kitts's execution. The vote was unanimous because those present feared what would happen if they did not go along with Allen's plan. Allen had previously told his criminal accomplices that he would kill snitches and that he had friends and connections to do the job for him even if he were in prison. He had also referred to himself as a Mafia hitman and stated that the "secret witness program" was useless because a good lawyer could always discover an informant's name and address. Allen kept a newspaper article about the murder of a man and woman in Nevada, and claimed he had "blown them in half" with a shotgun.

Allen thereafter developed a plan to poison Kitts by tricking her into taking cyanide capsules at a party to be held at Doeckel's Fresno apartment. Allen sent Mayfield and Furrow to get the cyanide and took some heavy stones from his house to weigh down Kitts's body, which was to be dumped into a canal. He overruled Jones's suggestion that Kitts merely be sent somewhere until "things died down," and he dismissed Doeckel's objection to having a murder committed in her apartment. Shortly before the party began, Allen told Furrow that if he refused to commit the killing, Allen could just as easily get rid of two people as one.

Allen left Doeckel's apartment shortly before Kitts arrived. When Kitts arrived and refused to take the "pills" offered to her, Mayfield and Jones called Allen. Allen told Furrow to kill her one way or another because he just wanted her dead. Later, when Kitts still would not take the cyanide pills, Allen met Furrow outside the apartment and stressed that he "didn't care how it was done but do it." Allen added that Furrow would be killed if he tried to leave the apartment. When Furrow and Kitts were finally left alone, Furrow began to strangle Kitts, only to be interrupted by a phone call from Allen asking if he had killed her yet. When Furrow answered no, Allen ordered him to "do it" and hung up. Furrow then strangled Kitts to death. Warning Jones, Doeckel, and Furrow that they were all equally involved in the murder, Allen had them tie stones to Kitts's wrapped-up body and, while he watched for traffic, throw it into a canal.

After the murder, Allen threatened and bragged to his various cohorts. To Carrasco, Allen said of Kitts that he had had to "ride her up, wet her down and feed her to the fishes." When Mayfield asked how Furrow was doing, Allen responded that he was "no longer in existence," explaining that it is easy to go to Mexico, get someone killed, and have the body disposed of for only $50. Allen also told Shirley Doeckel that Furrow was no longer around and repeated his claim that he had killed a woman in Las Vegas. Allen had not actually killed Furrow, however, and would later enlist his help in the 1974 robbery of an elderly couple at their jewelry store. About six months after the murder, when Mayfield asked Allen if he was worried about others talking, Allen said that he was not afraid, that "things would be taken care of" if that happened, that he would have snitches killed, and that he would take care of "secret witness" informers even if he were imprisoned.

Allen told Jones and others that "talking was a spreading disease and that the only way to kill it was to kill the person talking." Allen would say of his cohorts that "none of these people talked" and that, if they did, "he would get them from inside or outside prison." When Jones's home was burglarized some time after the murder and Jones told Allen about the burglary, Allen responded that the burglary showed how easily Jones could be reached. Allen later gave Jones a key that fit his residence, and told him in front of his five-year-old son that he knew Jones "would like his kids to grow up without harm."

Allen later brought in new employees, Allen Robinson and Benjamin Meyer, and bragged to Meyer that he "had a broad helping them who got mouthy so they had to waste her" and that she "sleeps with the fishes." He further warned...