764 F.3d 1109 (9th Cir. 2014), 09-99003, Woods v. Sinclair

Docket Nº:09-99003
Citation:764 F.3d 1109
Opinion Judge:PAEZ, Circuit Judge:
Party Name:DWAYNE ANTHONY WOODS, Petitioner-Appellant, v. STEPHEN SINCLAIR, Respondent-Appellee
Attorney:Suzanne Lee Elliott, Law Offices of Suzanne Lee Elliott, Seattle, Washington, and David B. Zuckerman, Law Offices of David B. Zuckerman, Seattle, Washington, for Petitioner-Appellant. John Joseph Samson, Assistant Attorney General, Olympia, Washington, for Respondent-Appellee.
Judge Panel:Before: Richard A. Paez, Richard C. Tallman, and Milan D. Smith, Jr., Circuit Judges. Opinion by Judge Paez; Partial Concurrence and Partial Dissent by Judge Tallman. CONCUR BY: TALLMAN (In Part) TALLMAN, Circuit Judge, concurring in part and dissenting in part:
Case Date:August 25, 2014
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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764 F.3d 1109 (9th Cir. 2014)

DWAYNE ANTHONY WOODS, Petitioner-Appellant,

v.

STEPHEN SINCLAIR, Respondent-Appellee

No. 09-99003

United States Court of Appeals, Ninth Circuit

August 25, 2014

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On Remand From The United States Supreme Court. D.C. No. 2:05-CV-00319-LRS.

SUMMARY[*]

Habeas Corpus/Death Penalty

On remand from the United States Supreme Court, the panel affirmed in part and vacated in part the district court's denial of a 28 U.S.C. § 2254 habeas corpus petition challenging a conviction and capital sentence for two counts of aggravated murder in the first degree and one count of attempted murder in the first degree, and remanded for the district court to consider in the first instance whether the petitioner can show cause and prejudice under Martinez v. Ryan, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012), excusing procedural default on certain claims of ineffective assistance of counsel.

The panel held that the state court did not unreasonably deny petitioner's claim under Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), because he had not made an unequivocal request for self-representation.

The panel held that the state court did not unreasonably deny petitioner's claim that he was denied his Confrontation Clause rights when the trial court admitted into evidence the deceased victim's statements to the police because they fell within the medical diagnosis exception to the hearsay rule. The panel held that the state court unreasonably applied White v. Illinois, 502 U.S. 346, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992), by determining some of the victim's statements were excited utterances, but that the error was harmless because those statements were cumulative.

The panel held that the state court's decision was neither contrary to nor an unreasonable application of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and did not involve an unreasonable factual determination when the state court denied petitioner's contention that the prosecution should have disclosed the crime lab's DNA testing review process (including peer review and destruction of erroneous draft reports) because that evidence was not exculpatory.

The panel rejected as procedurally barred petitioner's claim of a Brady violation in the state's failure to disclose the full details of the spillage of one of petitioner's blood samples at the crime lab.

The panel affirmed the denial of several of petitioner's claims of ineffective assistance of counsel on the merits and/or for lack of prejudice.

The panel agreed with the parties and the district court that two of petitioner's ineffective-assistance claims regarding DNA evidence were procedurally defaulted. The panel remanded to the district court so that it may determine in the first instance whether these claims are substantial and whether post-conviction-relief counsel was ineffective for failing to raise them, thereby excusing, under Martinez, the procedural default.

The panel vacated the district court's ruling that the petitioner's claim that he received ineffective assistance when his trial counsel failed to impeach witness Venus Shaver was procedurally barred, and remanded so that the district court may consider in the first instance whether the petitioner can show cause and prejudice under Martinez.

The panel affirmed the denial of relief on the petitioner's claim of cumulative deficiency.

Concurring in part and dissenting in part, Judge Tallman wrote that because none of the petitioner's new claims would lead a reasonable juror to conclude that the petitioner did not commit the murders or the attempted murder, no court can provide the relief he seeks and the majority's remand serves only one purpose: unnecessary delay.

Suzanne Lee Elliott, Law Offices of Suzanne Lee Elliott, Seattle, Washington, and David B. Zuckerman, Law Offices of David B. Zuckerman, Seattle, Washington, for Petitioner-Appellant.

John Joseph Samson, Assistant Attorney General, Olympia, Washington, for Respondent-Appellee.

Before: Richard A. Paez, Richard C. Tallman, and Milan D. Smith, Jr., Circuit Judges. Opinion by Judge Paez; Partial Concurrence and Partial Dissent by Judge Tallman.

OPINION

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PAEZ, Circuit Judge:

In 1997, a Washington jury found Dwayne A. Woods guilty of two counts of

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aggravated murder in the first degree, one count of attempted murder in the first degree, and one count of attempting to elude a police vehicle. After two days of deliberation, the jury sentenced Woods to death. The Washington State Supreme Court upheld his conviction and sentence, State v. Woods, 143 Wn.2d 561, 23 P.3d 1046 (Wash. 2001), and denied his petition for post-conviction relief, In re Woods, 154 Wn.2d 400, 114 P.3d 607 (Wash. 2005). Woods then filed a petition for a writ of habeas corpus in federal district court, which was denied. Woods appeals from the denial of habeas relief, contending that (1) he was denied his Sixth Amendment right to represent himself, (2) the state court's admission of certain evidence violated the Confrontation Clause, (3) the State withheld material, exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and (4) his trial counsel's representation was ineffective.1 We have jurisdiction under 28 U.S.C. § 1291.

In a previous opinion filed on August 10, 2011, we affirmed the district court's order denying Woods's habeas corpus petition. Woods v. Sinclair, 655 F.3d 886, 891 (9th Cir. 2011). On March 26, 2012, the Supreme Court granted Woods's petition for certiorari, vacated our opinion, and remanded the case for further consideration in light of Martinez v. Ryan, 566 U.S. __, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012). In May 2012, we ordered the parties to file supplemental briefs addressing the impact of Martinez and Sexton v. Cozner, 679 F.3d 1150, 1153 (9th Cir. 2012) on this case. That same month, a petition for rehearing en banc was granted in Detrich v. Ryan, 677 F.3d 958 (9th Cir. 2012). Detrich also involved Martinez issues. The parties' supplemental briefs addressing Martinez and Sexton were filed before the en banc court in Detrich filed its opinion on September 3, 2013. 740 F.3d 1237, 1262 (9th Cir. 2013) (en banc). We ordered further supplemental briefing on the impact of Detrich. The parties' supplemental briefs were filed on September 27, 2013. With the exception of the claims affected by Martinez, we again affirm the district court's rulings on the remaining claims for all the reasons set forth in our original opinion. We vacate the district court's ruling as to the claims affected by Martinez and remand for further proceedings in light of that case.

I. THE CRIME2

On Friday, April 26, 1996, Telisha Shaver was house-sitting at her aunt's trailer home in Spokane Valley, Washington. Telisha3 planned to spend the night at her boyfriend's home, but had agreed to let her sister, Venus, and Venus's friend, Jade Moore, spend the night at the trailer. Venus and Jade arrived at the trailer at approximately 1:45 a.m. on Saturday

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morning. The women drank alcohol and socialized. At some point, Venus and Jade decided to contact Dwayne Woods, whom Venus had previously dated. After the women paged Woods, he eventually joined them at the trailer. By that time, approximately 4:20 a.m., Jade was asleep.

While at the trailer, Woods served himself alcohol and talked with Venus. According to Venus's testimony, Woods was upset that Jade was asleep and urged Venus to wake her up. Venus tried to wake Jade up, but Jade did not respond. At this, Woods became irate and, according to Venus, shoved her onto the couch and attempted to unbutton her pants. Venus said that she initially escaped Woods's grasp, but that he managed to grab her again and then slammed her head and neck against a door. Venus testified that she has no memory of what transpired from that point forward except for intermittent flashes of memory in which she recalls struggling with Woods.

At approximately 7:30 a.m., Woods forced Jade to wake up at knife point. He took her to another one of the bedrooms, where Venus lay unconscious and severely beaten. Woods forced Jade to help him loot the trailer and to give him her ATM card and personal identification number. He then raped Jade orally and vaginally.

During the attack on Jade, Telisha returned to the trailer to retrieve some personal effects. Woods seized and bound her. Jade, who was laying on the floor and feigning unconsciousness, later stated that she heard a baseball bat hit Telisha's head. Jade said that she was then hit in the head with the bat, knocked unconscious, and had no memory of what happened after that point.

When Telisha failed to return home that morning, her mother, Sherry Shaver, decided to go to the trailer to check on her. She arrived at approximately 10:25 a.m. and found the door locked. Peering through a window in the trailer, she saw a man--whom she later identified as Woods--exiting from the other side of the trailer. She pounded on the locked trailer door, and Jade, naked and beaten, eventually opened the door. Sherry Shaver called 911.

Emergency personnel arrived at the trailer and took the victims to the hospital. While en route to the hospital, Jade told a paramedic about the events of the prior evening. At the hospital, she also told her father, the emergency room physician, and a nurse about what had transpired. Of the three victims, only Venus survived. Telisha died without ever regaining consciousness. Despite initially responding to medical treatment, Jade died the following day.

Shortly after Sherry Shaver reported seeing Woods leave the trailer, he was seen at two local...

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