624 F.3d 943 (9th Cir. 2010), 05-99006, Crittenden v. Ayers

Docket Nº:05-99006.
Citation:624 F.3d 943
Opinion Judge:FISHER, Circuit Judge:
Party Name:Steven Edward CRITTENDEN, Petitioner-Appellant, v. Robert L. AYERS,[*] Respondent-Appellee.
Attorney:Mark Goldrosen (argued), San Francisco, CA, and Michael L. Spiegel (argued), New York, NY, for the petitioner-appellant. Edmund G. Brown, Jr., Attorney General of the State of California, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Wa...
Judge Panel:Before: JEROME FARRIS, RAYMOND C. FISHER and MARSHA S. BERZON, Circuit Judges.
Case Date:August 20, 2010
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
FREE EXCERPT

Page 943

624 F.3d 943 (9th Cir. 2010)

Steven Edward CRITTENDEN, Petitioner-Appellant,

v.

Robert L. AYERS, [*] Respondent-Appellee.

No. 05-99006.

United States Court of Appeals, Ninth Circuit.

August 20, 2010

Argued and Submitted Dec. 13, 2007.

Submission Withdrawn March 1, 2010.

Resubmitted Aug. 13, 2010.

Amended Nov. 2, 2010.

Page 944

[Copyrighted Material Omitted]

Page 945

Mark Goldrosen (argued), San Francisco, CA, and Michael L. Spiegel (argued), New York, NY, for the petitioner-appellant.

Edmund G. Brown, Jr., Attorney General of the State of California, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Ward A. Campbell, Supervising Deputy Attorney General, Jesse N. Witt, Deputy Attorney General, and Eric

Page 946

L. Christoffersen (argued), Deputy Attorney General, for the respondent-appellee.

Appeal from the United States District Court for the Eastern District of California, Frank C. Damrell, District Judge, Presiding. D.C. Nos. CV-97-00602-FCD/GGH, CV-95-01957-FCD.

Before: JEROME FARRIS, RAYMOND C. FISHER and MARSHA S. BERZON, Circuit Judges.

ORDER

The opinion filed on August 20, 2010, slip op. 12331, and appearing at [620 F.3d 962] 2010 WL 3274506, is amended as follows:

In Section I.C.1 of the opinion, at slip op. 12351 [620 F.3d at 972-73] 2010 WL 3274506, at *8, the first paragraph, which states:

Under Batson 's first step, the defendant must establish a prima facie case of purposeful discrimination. See Batson, 476 U.S. at 93-94 [106 S.Ct. 1712]. He must show that (1) he is a member of a " cognizable racial group," (2) the prosecutor used a peremptory strike to remove a juror of defendant's race and (3) the totality of the circumstances raises an inference that the strike was on account of race. Id. at 96 [106 S.Ct. 1712]; see Johnson, 545 U.S. at 169 [125 S.Ct. 2410]; Boyd v. Newland, 467 F.3d 1139, 1143 (9th Cir.2006). The first and second elements of the test are met here, because Crittenden and the prospective juror are African-American and the prosecutor used a peremptory strike to remove the prospective juror. Thus, only the third element of the prima facie case is at issue-whether the California state court erred in failing to recognize that the totality of the circumstances raised an inference of racial motivation.

shall be deleted and replaced with the following paragraph:

Under Batson 's first step, the defendant must establish a prima facie case of purposeful discrimination. See Batson, 476 U.S. at 93-94 [106 S.Ct. 1712]. He must show that (1) the prospective juror is a member of a " cognizable racial group," (2) the prosecutor used a peremptory strike to remove the juror and (3) the totality of the circumstances raises an inference that the strike was on account of race. Id. at 96 [106 S.Ct. 1712]; see Johnson, 545 U.S. at 169 [125 S.Ct. 2410]; Boyd v. Newland, 467 F.3d 1139, 1143 (9th Cir.2006). The first and second elements of the test are met here, because the prospective juror is African-American and the prosecutor used a peremptory strike to remove the prospective juror. Thus, only the third element of the prima facie case is at issue-whether the California state court erred in failing to recognize that the totality of the circumstances raised an inference of racial motivation.

In Section II.A of the opinion, at slip op. 12360 [620 F.3d at 976-78] 2010 WL 3274506, at *12, the second paragraph, which states:

A " postcard" denial by the California Supreme Court is a denial on the merits. See Harris v. Superior Court, 500 F.2d 1124, 1128 (9th Cir.1974) (en banc); see also Chambers v. McDaniel, 549 F.3d 1191, 1197 (9th Cir.2008) (" [U]nless a court expressly (not implicitly) states that it is relying upon a procedural bar, we must construe an ambiguous state court response as acting on the merits of a claim, if such a construction is plausible." ). The first sentence of the California Supreme Court's order thus constitutes an adjudication on the merits of Crittenden's state habeas petition-necessarily including all aspects of his IAC claim-in its entirety. The second sentence elaborates the court's rationale for denying Crittenden's subclaims relating

Page 947

to alleged deficiencies in trial counsel's investigation of his mental status. As to those subclaims, we afford the full effect of AEDPA's " highly deferential standard for evaluating state-court rulings." Woodford v. Visciotti, 537 U.S. 19, 24 [123 S.Ct. 357, 154 L.Ed.2d 279] (2002) (per curiam) (internal quotation marks omitted). As to the remainder of his IAC claim, we " perform an independent review of the record to ascertain whether the state court decision was objectively unreasonable," because the state-court adjudication was not reasoned. Himes v. Thompson, 336 F.3d 848, 853 (9th Cir.2003) (internal quotation marks omitted).

shall be deleted and replaced with the following paragraph:

A " postcard" denial by the California Supreme Court is a denial on the merits. See Harris v. Superior Court, 500 F.2d 1124, 1128 (9th Cir.1974) (en banc); see also Chambers v. McDaniel, 549 F.3d 1191, 1197 (9th Cir.2008) (" [U]nless a court expressly (not implicitly) states that it is relying upon a procedural bar, we must construe an ambiguous state court response as acting on the merits of a claim, if such a construction is plausible." ). The first sentence of the California Supreme Court's order thus constitutes an adjudication on the merits of Crittenden's state habeas petition-necessarily including all aspects of his IAC claim-in its entirety. We therefore accord AEDPA deference to the California Supreme Court's disposition of those claims. See Gonzalez v. Brown, 585 F.3d 1202, 1206 (9th Cir.2009); see also 28 U.S.C. § 2254(d). Because the state court's decision was not reasoned, however, we " perform an independent review of the record to ascertain whether the state court decision was objectively unreasonable." Himes v. Thompson, 336 F.3d 848, 853 (9th Cir.2003) (internal quotation marks omitted).

With these amendments, the panel has voted to deny Appellant's and Appellee's petitions for rehearing. Judges Fisher and Berzon have voted to deny Appellant's petition for rehearing en banc and Judge Farris so recommends.

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.

Appellant's petition for rehearing and petition for rehearing en banc, filed September 16, 2010, is denied. Appellee's petition for rehearing, filed September 21, 2010, is denied. No further petitions for panel rehearing or rehearing en banc will be entertained.

OPINION

FISHER, Circuit Judge:

In 1989, a California jury convicted Steven Crittenden of two murders and sentenced him to death. He now appeals the denial of his federal habeas petition. Four claims are at issue here: (1) whether the state trial prosecutor exercised a peremptory challenge to exclude an African-American prospective juror on account of her race in violation of the Equal Protection Clause of the Fourteenth Amendment, as articulated in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); (2) whether Crittenden's trial counsel were constitutionally ineffective; (3) whether the shackling of Crittenden during trial was objectively unreasonable; and (4) whether a juror's consultation of the Bible at home and her discussion of a biblical passage with other jurors during penalty-phase deliberations constituted prejudicial juror misconduct. On the Batson claim, we vacate the district court's judgment and remand for further proceedings in light of the standard articulated in

Page 948

Cook v. LaMarque, 593 F.3d 810 (9th Cir.2010). On all other claims we affirm the district court.

FACTUAL AND PROCEDURAL BACKGROUND1

On January 17, 1987, Joseph Chiapella found his parents-both in their late sixties-bound, gagged and stabbed to death in their Chico, California home. Katherine Chiapella sustained massive injuries to her head and face and two deep knife wounds to her chest and upper abdomen. The cause of her death was multiple trauma, primarily from her forehead and chest wounds. William Chiapella suffered 13 wounds of varying severity. The cause of his death was multiple trauma, caused primarily by a large chest wound-a knife was driven completely inside his body-and blunt-force injuries to the right side of his head. Both killings had taken place four days before, on January 13.

The police quickly focused their suspicions on Crittenden. Several months before the murders, the Chiapellas had hired Crittenden, then a student at California State University at Chico, to perform yard work. An eyewitness selected Crittenden's photograph as resembling the college-age, African-American man he saw walking towards the Chiapella residence on January 13. On January 14, Crittenden cashed a $3,000 check signed by Katherine Chiapella, made payable to him and dated January 13. On January 21, the police executed a search warrant on Crittenden's apartment, where they found sheets with a strawberry pattern that matched the design on the bindings used to tie up the Chiapellas. They also seized a pair of black tennis shoes whose soles matched a shoe print left in the Chiapella residence. Crittenden was arrested the same day. At the police station, Crittenden said that Katherine Chiapella had paid him to perform various sexual activities on at least 12 occasions between August and December 1986. He claimed that the $3,000 check was payment for one particular encounter on January 9, which took place in Room 96 of the Thunderbird Lodge. He stated that he had not worn his black tennis shoes since the previous fall. He also told police that he had never gone inside the Chiapella residence and had spent the afternoon of January 13 at the gym with...

To continue reading

FREE SIGN UP