Iii v. Ayers
| Decision Date | 08 September 2010 |
| Docket Number | No. 07-99016.,07-99016. |
| Citation | 621 F.3d 1030 |
| Parties | Harvey Lee HEISHMAN, III, Petitioner-Appellant, v. Robert L. AYERS, for California State Prison at San Quentin, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
OPINION TEXT STARTS HERE
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Geoffrey Rotwein, San Francisco, CA, and Michael Satris (argued), Bolinas, CA, for the petitioner-appellant.
Edmund G. Brown, Jr., Attorney General of California, Dane Gillette, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Alice B. Lustre, Deputy Attorney General, and Glenn R. Pruden (argued), Supervising Deputy Attorney General, San Francisco, CA, for the respondent-appellee.
Appeal from the United States District Court for the Northern District of California, Vaughn R. Walker, Chief District Judge, Presiding. D.C. No. CV-90-01815-VRW.
Before BARRY G. SILVERMAN, RAYMOND C. FISHER and MILAN D. SMITH, JR., Circuit Judges.
OPINION
Harvey Lee Heishman, III, a California prisoner under sentence of death, appeals from denial of a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Heishman asserts claims of prosecutorial misconduct during the guilt phase of his trial and ineffective assistance of counsel during the penalty phase. We affirm.
Heishman met Nancy Lugassy in July 1979. Lugassy invited Heishman to her home the evening they met, and that night Lugassy ran crying to her neighbor and told him that she had been raped. Lugassy identified Heishman from a photo array, and police arrested him and charged him with rape. Heishman posted bail and then appeared for arraignment on October 24, 1979. The municipal court scheduled a preliminary examination for November 20, 1979.
On November 1, 1979, Nancy Lugassy was shot dead in her front yard, and Heishman was eventually arrested and charged with the murder. At trial, the prosecution presented the testimony of Lugassy's neighbors, who had heard gunshots or identified the car that had driven away after the shooting, but the only direct evidence of Heishman's involvement in the killing came from two witnesses: Cheryl Miller and Nancy Gentry. Both testified that they had been involved in Heishman's plan to kill Lugassy, and both testified only after receiving complete immunity. Gentry was the only witness who placed Heishman at the scene on the night of the murder, and during more than a day of cross-examination Heishman's attorneys, assistant public defenders William A. Keep and John Costain, conducted a thorough impeachment. Nevertheless, at the conclusion of the guilt phase, the jury found Heishman guilty of first degree murder with special circumstances.
During the penalty phase of Heishman's trial, the aggravation evidence focused on Lugassy's murder and Heishman's history of sexual violence. See People v. Heishman, 45 Cal.3d 147, 246 Cal.Rptr. 673, 753 P.2d 629, 666-67 (1988). Five women testified that they had been sexually assaulted by Heishman, and the prosecution submitted evidence of convictions for sexual assaults of two of the five witnesses and three additional victims. Id. at 650. Overall, the prosecution's evidence showed that from December 1969 until July 1978, Heishman was either on probation, on parole or in prison for various sexual assaults. Id. at 666.
Heishman's attorneys also presented a case in mitigation, which “pertained to [Heishman's] general character and background.” Id. at 650. A chaplain, corrections officers and former employers testified as to Heishman's good character and work habits, and two ex-girlfriends and his ex-wife testified as to their positive and nonviolent relationships with him. Id. at 650-51. His mother testified that he was an Rh-factor baby, requiring blood transfusions, and she and other family members described Heishman's discovery of the body of his grandmother after she had committed suicide and his resultant withdrawal. Id. at 651. Heishman's sister testified that she had participated in therapy sessions with her brother while he was in prison and that, when Heishman had talked about his prior rape cases, he had begun crying and expressed remorse for his earlier acts. Id. Heishman's counsel did not present any psychiatric evidence. At the conclusion of the penalty phase, the jury sentenced Heishman to death.
Heishman pursued direct appeals culminating in a lengthy decision by the California Supreme Court affirming the conviction. See id. at 712, 246 Cal.Rptr. 673, 753 P.2d 629. He filed his federal habeas petition on June 26, 1990. After returning to state court multiple times to exhaust state remedies, Heishman filed the operative fourth amended federal petition in October 1993. The district court held multiple evidentiary hearings and issued over 200 pages of decisions before denying the last of Heishman's claims on June 12, 2007, and entering judgment. After Heishman submitted a notice of appeal, the district court issued a certificate of appealability for the claims that we now address.
“We review de novo a district court's decision to deny a petition for habeas corpus,” Bailey v. Hill, 599 F.3d 976, 978 (9th Cir.2010), although “[t]he district court's factual findings are reviewed for clear error,” Stanley v. Schriro, 598 F.3d 612, 617 (9th Cir.2010). The decision to grant or deny an indigent habeas petitioner's request for expert services “will be overturned on appeal only for an abuse of discretion.” Stubbs v. Gomez, 189 F.3d 1099, 1107 (9th Cir.1999). We similarly review “the decision to admit or deny expert testimony for abuse of discretion.” United States v. Reed, 575 F.3d 900, 918 (9th Cir.2009). The Anti-Terrorism and Effective Death Penalty Act (AEDPA) does not apply to Heishman's petition for habeas corpus, which was filed nearly six years before AEDPA became law on April 24, 1996. See Lindh v. Murphy, 521 U.S. 320, 322, 327, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997).
Heishman first argues that the district court erred by finding that false testimony the prosecution failed to correct and Brady material the prosecution failed to disclose was immaterial. We agree with the district court and hold that there is no reasonable likelihood that the false testimony could have changed the jury's verdict or that the cumulative impact of the false testimony and undisclosed Brady material would have changed the jury's verdict. See Jackson v. Brown, 513 F.3d 1057, 1075-77 (9th Cir.2008).
The district court assumed without deciding that the prosecution failed to correct false testimony under the obligations outlined in Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959), and either found or assumed failure to produce categories of favorable discovery required by Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). Specifically, the district court found that the prosecution's key witness-Nancy Gentry-testified falsely concerning both the scope of her prior criminal activity and remuneration for her testimony. The district court assumed without finding “that the prosecutor knowingly allowed Gentry to testify falsely that her criminal activity was limited to that discussed at trial and that she was receiving no consideration for her testimony other than immunity.” The district court also either found or assumed that the prosecution failed to turn over material concerning Gentry's sexual relationships with law enforcement officers, police reports and a misdemeanor warrant concerning bad checks, a police report of a book theft and records of funds provided to cover costs incurred in connection with testifying.
Even adopting the district court's assumption that the prosecution was aware that Gentry's testimony was false, there is no reasonable likelihood that the false testimony could have changed the jury's verdict or that the cumulative impact of the false testimony and undisclosed Brady material would have changed the jury's verdict. See Jackson, 513 F.3d at 1075-77. Corrections of the false statements and the suppressed Brady material were similar to and cumulative of the extremely thorough impeachment during Gentry's cross-examination, including proof that Gentry was an incorrigible liar and had lied numerous times during the proceedings, including while under oath. See United States v. Lopez, 577 F.3d 1053, 1059 (9th Cir.2009) (). Specifically, correcting testimony or disclosing information related to Gentry's criminal activity would have been redundant with the history of passing bad checks, petty theft and theft of rental cars exposed during Gentry's testimony. Payment for transportation, meals and lodging to facilitate testimony is petty in comparison to Gentry's receipt of immunity. Cf. Hayes v. Brown, 399 F.3d 972, 986-87 (9th Cir.2005) (en banc) (). Nor is it reasonably likely that cumulative consideration of Brady and Napue error would have swayed the jury in light of impeachment evidence concerning perjury, prior bad acts and Gentry's involvement in the killing. A witness may be “so thoroughly impeached” that even evidence of perjury at trial is “merely cumulative.” United States v. Polizzi, 801 F.2d 1543, 1551 (9th Cir.1986).
Heishman also contends that his trial counsel rendered ineffective assistance of counsel at the penalty phase of the trial and failed to present an adequate case in mitigation. He alleges that counsel were deficient in two major respects. First, he maintains that counsel failed to conduct a...
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