470 F.3d 792 (9th Cir. 2006), 04-99008, Raley v. Ylst

Docket Nº:04-99008.
Citation:470 F.3d 792
Party Name:David A. RALEY, Petitioner-Appellant, v. Eddie YLST, Acting Warden of the California State Prison at San Quentin, Respondent-Appellee.
Case Date:April 14, 2006
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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470 F.3d 792 (9th Cir. 2006)

David A. RALEY, Petitioner-Appellant,


Eddie YLST, Acting Warden of the California State Prison at San Quentin, Respondent-Appellee.

No. 04-99008.

United States Court of Appeals, Ninth Circuit.

April 14, 2006

Argued and Submitted Feb. 16, 2006.

Amended Nov. 30, 2006.

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[Copyrighted Material Omitted]

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Robert D. Bacon, Oakland, CA, for the petitioner-appellant.

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Violet M. Lee, Deputy Attorney General, San Francisco, CA, for the respondent-appellee.

Appeal from the United States District Court for the Northern District of California James Ware, District Judge, Presiding. D.C. No. CV-93-02071-JW.

Before: SILVERMAN, GRABER, and RCLIFTON, Circuit Judges.


The opinion filed on April 14, 2006, slip opinion page 4145 and published at 444 F.3d 1085 (9th Cir.2006), is amended by the opinion filed concurrently with this order.

With these amendments, the panel has voted to deny the petition for rehearing and petition for rehearing en banc.

The full court has been advised of the petition for rehearing en banc. A judge of the court called for a vote on whether to rehear the matter en banc. A majority of the nonrecused active judges failed to vote in favor of en banc rehearing.

The petition for rehearing and petition for rehearing en banc are DENIED. No further petitions for rehearing or petitions for rehearing en banc may be filed.


GRABER, Circuit Judge:

Petitioner David A. Raley was convicted in California state court, and sentenced to death, for the kidnap and first-degree murder of one victim and the kidnap, oral copulation by force, and attempted murder of a second victim. In this habeas petition, brought pursuant to 28 U.S.C. § 2253, he challenges his conviction on the grounds that he received ineffective assistance of counsel both at the trial and penalty phases and that the jury committed prejudicial misconduct by considering extrinsic evidence during sentencing. Additionally, he asserts that the district court erred in denying his request for an evidentiary hearing on his claim that the prosecutor failed to produce jail medical records to the defense as required under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Because Petitioner received constitutionally sufficient assistance of counsel, because deliberations that are intrinsic to the jury process are not grounds for reversal, and because the records in question were not Brady material, we affirm.


Petitioner was charged with the kidnap, attempted oral copulation by force, and first-degree murder of victim J.G. in violation of California Penal Code sections 207(a), 664-288a(c)(2), and 187, respectively. He also was charged with the kidnap, oral copulation by force, and attempted murder of victim L.M. in violation of sections 207(a), 288a(c)(2), and 664-187, respectively. A jury convicted him on all counts and found two special circumstances in relation to the murder of J.G.: (1) murder in the commission of a kidnap, and (2) torture murder. The jury found that Petitioner used a deadly or dangerous weapon in murdering J.G. and that he used such a weapon and inflicted great bodily injury upon L.M.

The first penalty jury deadlocked. A second penalty jury sentenced Petitioner to death. During deliberations, the second penalty jury discussed Petitioner's decision not to testify, his possible eligibility for release if sentenced to life without parole, and the comparative costs of death and life sentences.

Petitioner pursued both a direct appeal and habeas relief through the state courts.

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On direct appeal, the California Supreme Court reversed Petitioner's conviction for attempted oral copulation of J.G. and affirmed the remaining convictions and the sentence. The California Supreme Court denied the habeas petition.

Petitioner then filed an original petition for habeas relief with the district court, before Congress passed the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). The petition was stayed pending exhaustion of some claims at the state level and, ultimately, was denied on all grounds. The district court issued a Certificate of Appealability for four claims: ineffective assistance of counsel during the guilt phase, ineffective assistance during the penalty phase, jury misconduct, and competency to stand trial. Petitioner timely appealed all but the competency claim. 1


Petitioner does not challenge the state court's factual findings. Thus, the findings of the California Supreme Court are presumed correct, 28 U.S.C. § 2254(e)(1), and we summarize those findings here.

In 1985, Petitioner worked as a security guard at the Carolands Mansion in Hillsborough, California. Although the mansion was not generally open to the public, Petitioner occasionally gave unauthorized tours to young people. Witnesses who had taken such tours with Petitioner testified that he had asked them to go into certain rooms of the mansion and scream to show that the rooms were soundproof. He commented to one young woman that he could kill someone in the basement of the mansion and no one would hear any screams. Petitioner reportedly also made sexually suggestive comments to young women during these tours.

On Saturday, February 5, 1985, victims L.M. and J.G. came to Carolands Mansion. L.M. was 17 and J.G. was 16. Petitioner was on duty guarding the house. The girls asked Petitioner for a tour and he agreed, but on the condition that they park their car out of sight. They did so. During the tour, Petitioner told the girls that some guards received sexual favors in exchange for giving tours.

As the tour reached its conclusion, sounds were heard outside. Petitioner said that the police were there with training dogs and that the girls needed to hide or Petitioner would lose his job. He led them to a walk-in safe in the basement. The young women resisted entering the safe, but Petitioner insisted and promised that he would not close the door. They complied; he closed the door behind them.

After five minutes inside, the girls heard Petitioner calling L.M.'s name in a sing-song voice. He then told them that he would let them out of the safe, but only if they removed their clothes. He directed them to throw their clothes out of the safe when he opened the door. They came out of the safe wearing only their underwear. Petitioner handcuffed their hands behind their backs. He was holding a large knife. He told them that they had to "fool around" with him for five minutes and then he would let them go.

He took them to a workroom and tied L.M.'s handcuffs to a rope that was already attached to the leg of a bench. He led J.G. away. L.M. heard her friend scream. Petitioner led J.G. back into the workroom 15 minutes later. She was

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dressed, but she appeared frightened and her lips and face were purple. Petitioner gave J.G. his coat and tied her to the workbench. He then led L.M. to another room, ordered her to remove her underwear, and told her to "kiss me and like it." She tried but could not comply. Petitioner told her to get onto her knees and unbuckle his pants. He then told her to "play with him" and "suck him." Again, she tried to comply but gagged when she touched her mouth to his penis. He demurred and ordered her to "play with him," instead. L.M. manually manipulated him until he ejaculated. Petitioner asked her to let him "come inside"; she refused.

Petitioner told L.M. he would let the two young women go but, if they told anyone what had happened, he would kill them. He then walked them to a door near the safe. J.G. asked to go first. Petitioner handcuffed L.M. to a door. L.M. heard noises after Petitioner and J.G. left and then saw the two running back toward her with Petitioner gripping J.G.'s arm. Petitioner told J.G. to wait there, and then he left. J.G. told L.M. that Petitioner had hit her with a club. Petitioner returned and again led J.G. away, leaving L.M. L.M. heard bumping noises and heard J.G. screaming. After 15 minutes of those noises, L.M. heard a dragging sound.

Petitioner then returned and pulled L.M. into the dark hallway, where he stabbed her in the abdomen. Petitioner stabbed L.M. 35 times and hit her with...

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