Stanley v. Cullen

• Decision Date: 31 January 2011
• Docket Number: No. 08–99026.,08–99026.
• Citation: 633 F.3d 852
• Parties: Gerald F. STANLEY, Petitioner–Appellant,v.Vincent CULLEN,* Warden of San Quentin State Prison, Respondent–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

633 F.3d 852

11 Cal. Daily Op. Serv. 1415

2011 Daily Journal D.A.R. 1790

Gerald F. STANLEY, Petitioner–Appellant,

v.Vincent CULLEN,* Warden of San Quentin State Prison, Respondent–Appellee.

No. 08–99026.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 16, 2010.Filed Jan. 31, 2011.

Mark E. Olive, Law Offices of Mark E. Olive, Tallahassee, FL, Tivon Schardl and Joseph Schlesinger, Federal Public Defender's Office, Sacramento, CA, for the petitioner-appellant.Ward Allen Campbell and Jesse Noel Witt, Office of the California Attorney General, Sacramento, CA, for the respondent-appellee.Appeal from the United States District Court for the Eastern District of California, Frank C. Damrell, Senior District Judge, Presiding. D.C. No. 2:95–CV–01500–FCD–GGH.Before: WILLIAM A. FLETCHER, RICHARD C. TALLMAN and JAY S. BYBEE, Circuit Judges.

OPINION

W. FLETCHER, Circuit Judge:

Petitioner Gerald F. Stanley was convicted in California state court of arson, burglary, and first degree murder of his wife. The court and jury found true several special circumstances making Stanley eligible for the death penalty. Partway through the penalty phase trial, Stanley's counsel moved for proceedings under California Penal Code § 1368 to determine whether Stanley was competent to stand trial. The trial court held a competency trial before a separate jury. The jury returned a verdict that Stanley was competent. The court then resumed the penalty phase before the original jury. That jury returned a verdict of death. The California Supreme Court affirmed the guilty verdict and death sentence on direct appeal. The California courts have denied habeas relief.

Stanley's amended habeas petition in federal district court asserted claims arising out of both the guilt and penalty phases of Stanley's trial, including claims related to Stanley's competency to stand trial. The district court held that a biased juror rendered invalid the verdict of the competency jury. The district court remanded to the state court to allow that court to determine whether it was feasible to conduct a retrial to decide whether Stanley was competent during his penalty phase trial. The district court then entered a partial judgment under Federal Rule of Civil Procedure 54(b) denying all of Stanley's guilt phase claims and holding in abeyance his remaining penalty phase claims.

Stanley appeals on several grounds. First, he contends that the state trial court's failure to institute competency proceedings sua sponte during the guilt phase violated his right to procedural due process. Second, he contends that his trial counsel were ineffective for failing to investigate or raise the issue of his competency to stand trial during the guilt phase. Third, he contends that the district court improperly denied an evidentiary hearing on a claim that counsel were ineffective in failing to raise a diminished capacity defense during the guilt phase. Fourth, he contends that the district court acted improperly in remanding to the state court for a determination whether a retrial to decide Stanley's competency during the penalty phase is feasible. Fifth, he contends that the district court acted improperly in holding in abeyance his remaining penalty phase claims pending the state court's decision concerning the feasibility of a retrial, and possibly pending the retrial itself, on remand. Finally, he asks us to consider an uncertified claim that he was denied a full and fair hearing by the state courts on his motions to suppress evidence.

For the reasons that follow, we affirm the district court on all five certified claims. We decline to certify the uncertified claim.

I. Background

A. State Court Proceedings

In 1980, Stanley was charged in Lake County Superior Court with arson, burglary, and first degree murder of his fourth wife, Cindy Rogers Stanley. A description of the murder is contained in the opinion of the California Supreme Court on direct appeal. People v. Stanley, 10 Cal.4th 764, 42 Cal.Rptr.2d 543, 897 P.2d 481, 487–92 (1995). At the time of the murder, Stanley was on parole after serving time in California prison for killing his second wife, Kathleen Rhiley Stanley. The Lake County Superior Court appointed William Neill, a former Trinity County prosecutor, to represent Stanley. Neill, together with co-counsel Richard Petersen, represented Stanley during both the guilt and penalty phases of his trial.

Stanley's case was transferred to Butte County in 1982 where it was tried by retired Butte County Superior Court Judge Jean Morony. After a seven-month trial, the jury found Stanley guilty of arson, burglary, first degree murder, and the special circumstances that Stanley intentionally killed the victim while lying in wait and that Stanley killed the victim for the purpose of preventing her from testifying in a criminal proceeding. In a separate proceeding, the court and jury found true additional special circumstances.

Judge Morony held a penalty phase trial beginning in August 1983. Defense counsel intended to present as mitigating evidence the testimony of psychiatrist Dr. David Axelrad and videotaped interviews of Stanley he conducted. Stanley changed his mind repeatedly over the course of several days and ultimately refused to waive his psychiatrist-patient and Fifth Amendment privileges in order to permit his attorneys to call Dr. Axelrad or present this evidence to the jury. Arguing that Stanley was interfering irrationally with their “entire mitigation strategy,” defense counsel moved for competency proceedings under California Penal Code § 1368. Section 1368 provides that either counsel or the court may move for a hearing to determine whether a criminal defendant is competent to stand trial. Judge Morony denied the § 1368 motion twice, finding both times that there was insufficient doubt as to Stanley's competency to warrant a § 1368 hearing. When counsel made the motion a third time, Judge Morony finally granted it. He suspended the penalty phase trial and kept the jury on call pending a determination of Stanley's competency.

A month-long competency trial, with a separate jury, was held in Butte County before Superior Court Judge Reginald M. Watt. In November 1983, that jury returned a verdict that Stanley was competent within the meaning of California Penal Code §§ 1367 and 1368.

Judge Morony then resumed the penalty phase trial before the original jury. By this time, Stanley had changed his mind again. He permitted Dr. Axelrad to testify and allowed his counsel to play the tapes of the Axelrad interviews. On December 28, 1983, the original jury returned a verdict of death.

Stanley appealed his conviction and sentence to the California Supreme Court, which denied relief on direct appeal on July 6, 1995. People v. Stanley, 10 Cal.4th 764, 42 Cal.Rptr.2d 543, 897 P.2d 481 (1995). On May 20, 1996, the United States Supreme Court denied Stanley's petition for writ of certiorari. Stanley v. California, 517 U.S. 1208, 116 S.Ct. 1825, 134 L.Ed.2d 930 (1996).

In August 1995, Stanley filed a pro se petition for writ of habeas corpus in the Eastern District of California complaining about the conduct of his appellate counsel and of San Quentin officials. See Stanley v. Ayers, No. 2:95–cv–1500–FCD–GGH (E.D. Cal. filed Aug. 17, 1995). In January 1996, the federal district court granted Stanley's request for the appointment of counsel and stayed Stanley's execution. The district court appointed federal public defenders to represent Stanley. It stayed and held in abeyance Stanley's federal habeas petition while he exhausted his federal claims in state court.

On July 17, 2002, the California Supreme Court denied Stanley's state habeas petition. It held that some of his claims were procedurally barred as untimely. It denied his remaining claims “on the merits” without a reasoned decision.

B. Federal Court Proceedings

Stanley filed an amended federal habeas petition in district court on September 30, 2002. The amended petition asserted twenty-eight claims, including, inter alia, ineffective assistance of counsel (Claims 1, 23, 26); infringement of Stanley's right not to be tried while incompetent (Claims 1, 22, 24); a constitutionally inadequate competency hearing (Claims 1–3); denial of a full and fair hearing on Stanley's Fourth Amendment motions to suppress (Claim 4); illegal searches and seizures by the State (Claim 5); juror misconduct (Claim 21); and evidentiary and jury instruction errors during the guilt (including special circumstances) and penalty phases (Claims 6–20, 24, 25, 27, 28).

On September 2, 2005, Magistrate Judge Hollows ordered an evidentiary hearing on the following issues: ineffective assistance of counsel (Claims 1(b), 1(e), 22, 23, 24), juror misconduct (Claim 21), and prosecutorial suppression of material information (Claim 27). In April 2006, Judge Hollows held an eleven-day evidentiary hearing.

On April 10, 2007, Judge Hollows issued Findings and Recommendations (“F & R”) recommending granting relief on Claim 21 of Stanley's amended petition. Claim 21 alleged that a juror in the competency trial had engaged in misconduct by failing to disclose facts during voir dire and by lying about her ability to be impartial. Judge Hollows found that the juror had engaged in misconduct that warranted invalidation of the competency verdict. Judge Hollows recommended that the district court remand to the state court to determine whether a retrial on the question of Stanley's penalty phase competency would be feasible. Judge Hollows also recommended that once the district court adjudicated Stanley's guilt phase claims, the remaining penalty phase claims be held in abeyance pending the state court's determination concerning the feasibility of a retrial.

District Judge Damrell adopted the F & R on the competency juror misconduct claim. Judge Damrell rejected Stanley's contention that the federal court, rather than the state court...