704 F.3d 1143 (9th Cir. 2013), 09-99008, Cunningham v. Wong

Docket Nº:09-99008.
Citation:704 F.3d 1143
Opinion Judge:TALLMAN, Circuit Judge:
Party Name:Albert CUNNINGHAM, Petitioner-Appellant, v. Robert K. WONG, Respondent-Appellee.
Attorney:Jerry L. Newton, Carmel, CA; Norman D. James, Corvallis, MT, for Petitioner-Appellant. Edmund G. Brown Jr., Attorney General of California; Dane R. Gillette, Chief Assistant Attorney General; Pamela C. Hamanaka, Senior Assistant Attorney General; A. Scott Hayward and Lance E. Winters, Deputy Atto...
Judge Panel:Before: HARRY PREGERSON, RONALD M. GOULD, and RICHARD C. TALLMAN, Circuit Judges. Opinion by Judge TALLMAN; Partial Concurrence and Partial Dissent by Judge PREGERSON. PREGERSON, Circuit Judge, concurring in part and dissenting in part [1]:
Case Date:January 08, 2013
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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704 F.3d 1143 (9th Cir. 2013)

Albert CUNNINGHAM, Petitioner-Appellant,


Robert K. WONG, Respondent-Appellee.

No. 09-99008.

United States Court of Appeals, Ninth Circuit.

January 8, 2013

Argued and Submitted March 8, 2012.

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Jerry L. Newton, Carmel, CA; Norman D. James, Corvallis, MT, for Petitioner-Appellant.

Edmund G. Brown Jr., Attorney General of California; Dane R. Gillette, Chief Assistant Attorney General; Pamela C. Hamanaka, Senior Assistant Attorney General; A. Scott Hayward and Lance E. Winters, Deputy Attorneys General, Los Angeles, CA, for Respondent-Appellee.

Appeal from the United States District Court for the Central District of California, George H. King, District Judge, Presiding. D.C. No. 2:02-CV-07170-GHK.


Opinion by Judge TALLMAN; Partial Concurrence and Partial Dissent by Judge PREGERSON.


TALLMAN, Circuit Judge:

Petitioner-Appellant Albert Cunningham (" Cunningham" ) appeals the district court's denial of his petition for a writ of habeas corpus. 28 U.S.C. § 2254. Cunningham was convicted of robbery/murder in California state court and was sentenced to death in 1988. He raises ten individual claims alleging error in both the guilt and penalty phases of his California criminal proceedings. His claims generally fall into three categories: 1) prosecutorial misconduct; 2) ineffective assistance of counsel; and 3) improper admission of post-arrest statements. We have jurisdiction under 28 U.S.C. § 2253, and we affirm.



At about 9:00 p.m. on December 1, 1985, Carmen Treto (" Treto" ), the murder victim, drove his white-over-black Buick LeSabre to the Pair of Aces Bar in Pasadena, California. Treto had just received $1,400 or $1,500 in cash for a job, and he carried the money in various places on his person. Juvenal Gallegos, the bar's doorman, and Angel Gallegos, the manager, both saw Treto at the bar that night, recognizing that he was very drunk.

At about 11:00 p.m., Juan Cebreros (" Cebreros" ), another victim and the surviving eyewitness to the murder, arrived at the Pair of Aces with his brother, Favio. Cebreros and Treto played pool together.

Between 7:00 p.m. and 2:00 a.m., both Angel and Juvenal Gallegos, as well as Cebreros, saw Cunningham at the bar. They described Cunningham as an African-American male in his forties, slender and about 5 feet 10 inches tall. The witnesses said Cunningham was wearing a maroon three-piece pinstripe suit and tie as well as thick glasses with dark rims. He had a mustache and goatee, and his hair was shoulder-length. He also had a distinctive gold front tooth.

Around 1:30 a.m., Cunningham left the Pair of Aces and entered Rickey's Lounge, another nearby bar. Witnesses at Rickey's recognized Cunningham as also having been there earlier that evening. Cunningham started playing pool at Rickey's with the boyfriend of the bartender, who noticed that Cunningham kept his left hand close to his body and folded his arms to keep his coat from opening, as if to conceal something. After about half an hour, Cunningham visited the restroom and remained inside until the bartender announced the bar was closing. He then left the restroom and the bar.

Cebreros left the Pair of Aces for home about the same time, just before 2:00 a.m. Although other patrons urged Treto to go home and sober up, he was apparently the last person to leave. As Treto finally staggered out of the bar, Juvenal Gallegos saw

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about $400 in $100 and $50 bills sticking out of Treto's shirt pocket.

A short time later, Cebreros, worried for Treto's safety, returned to the Pair of Aces in his own vehicle to offer Treto a ride home. Treto was standing by a lamppost in front of the bar when Cebreros drove up. Cebreros parked in the lot behind the bar, then walked to the front of the bar to speak with Treto. Despite his obvious intoxication, Treto insisted on driving home. Treto had reached the driver's side door and had bent down to insert the key when a man later identified as Cunningham approached from the direction of Rickey's Lounge.

Cebreros, who was standing next to Treto, heard Cunningham demand, " Hey amigo, give me the money." He saw Cunningham point a gun at Treto as he declared, " This is a .357 magnum." Treto turned to face Cunningham and extended his hands. Without warning, Cunningham suddenly fired, hitting Treto in the chest. Cebreros turned and ran but was shot in the thigh as he fled. Despite his bullet wound, Cebreros managed to reach a nearby fast-food restaurant where he had someone call the police.

Shortly after the robbery occurred, two different officers working in the neighborhood saw an African-American man with long hair and glasses driving eastbound from the scene in a white-and-black car with its headlights off. One of these officers, Pasadena Police Officer Hal Edwards, was dispatched to the scene of the shooting. On arrival, he found Treto lying on his back in a pool of blood. One of Treto's shoes had been removed and a small amount of cash remained on the ground. His car was also missing.

Another first responder, Officer John Thomas, was instructed to collect evidence and photograph the scene. He found some bills and coins on the ground and eight $1 bills in Treto's pants pocket, but he testified that Treto's wallet, shoes, shirt, and jacket were all empty.

Officers Carter and Ortiz arrived on the scene. Cebreros spoke with Ortiz in Spanish. Pasadena firemen, including Paramedic Sean English, treated Cebreros at the scene before he was taken to Huntington Memorial Hospital. While at the hospital, Cebreros described his assailant to Detective Lee Baroni as having a brown suit, glasses, and a beard.

Treto died at the hospital from uncontrolled bleeding and cardiac arrest. A bullet was recovered from his spine on autopsy, and a forensic examination revealed that it was capable of being fired from either a .38 special or .357 magnum revolver.

Approximately forty-two hours after the robbery/murder, Treto's car was discovered in Compton. The car had been stripped and abandoned and contained no usable prints other than those of Treto's wife. It had rained between the shooting and the discovery of the car.

On December 13, 1985, Cunningham returned to patronize the Pair of Aces. Angel and Juvenal Gallegos immediately recognized Cunningham as having been present the night of the murder and called the police. Officer Delgado arrived, arrested Cunningham, and took him to the Pasadena Police Station. Cebreros identified Cunningham as the murderer from a photographic lineup.


After Cunningham's arrest on December 13, 1985, the Los Angeles County District Attorney filed a felony complaint charging him with (1) murder of Treto during the course of a robbery; (2) robbery of Treto; (3) attempted murder of Cebreros by infliction of great bodily injury; (4) attempted robbery of Cebreros; and (5) possession

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of a firearm by a felon. Cunningham was arraigned in February 1986 and pleaded not guilty to all charges. In November 1986, before trial in the murder case, the District Attorney filed a separate complaint against Cunningham for forcibly sodomizing a fellow inmate in the Los Angeles County Jail.

The guilt phase of Cunningham's trial began on July 27, 1988. The trial was held before Los Angeles County Superior Court Judge Gilbert Alston. Cunningham was represented by appointed counsel, Michael Udovic (" Udovic" ) and Terrence Bennett (" Bennett" ). Assistant District Attorney Susan Wondries (" Wondries" ) handled the prosecution. On August 17, 1988, the jury convicted Cunningham on all counts.

In a separate proceeding from August 22-23, the jury found as true that Cunningham had two prior felony convictions. One of the felonies was Cunningham's prior conviction for second-degree murder for the killing of Ella Mae Fellows in 1976. The other felony was Cunningham's assault with a deadly weapon on a police officer, a crime discussed at length later in the penalty phase of the trial.


The penalty phase of Cunningham's trial began on August 24, 1988. The defense chose to present its case in mitigation first. The mitigating evidence demonstrated (1) Cunningham's terrible childhood; (2) family love for Cunningham despite his misdeeds; (3) Cunningham's previous positive adjustment to prison life; and (4) Cunningham's version of his prior crimes, including the murder of Ella Mae Fellows, his shootout with police officers following his theft of a taxi cab, and the most recent allegation of forced sodomy. The defense called as witnesses (1) Cunningham's mother, Rosa Vaughn; (2) Johnnie Washington, a pastor at Cunningham's church and former boarder at Rosa Vaughn's home; (3) Marilyn Cox, an employee of Volt Temporary Services, Cunningham's employer; and (4) Cunningham himself.

Rosa Vaughn testified as to Cunningham's difficult personal history. She told the jury that Cunningham's father, Albert Sr., beat her while she was pregnant and caused her to fall on her stomach. She also mentioned that Cunningham suffered a " forceps delivery" at birth, causing holes in his head that took months to heal. Rosa Vaughn left Cunningham's father when Cunningham was still an infant, isolating the child from any positive male role models.

Cunningham showed intellectual promise in his early years, moving up a grade in elementary school. But he experienced ongoing psychological problems that plagued him for the rest of his life; problems for which Rosa Vaughn sought advice from neurologists, psychiatrists, and ministers.

Cunningham had difficulties with Vaughn's new husband, Leland Young, whom she married in 1954 when Cunningham was seven years old. Young " didn't understand...

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