Doe v. Ayers

• Citation: 782 F.3d 425
• Decision Date: 31 March 2015
• Docket Number: No. 15–99006.,15–99006.
• Parties: John DOE, Petitioner–Appellant, v. Robert L. AYERS, Jr., Warden, of California State Prison at San Quentin, Respondent–Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

782 F.3d 425

John DOE, Petitioner–Appellant

v.Robert L. AYERS, Jr., Warden, of California State Prison at San Quentin, Respondent–Appellee.

No. 15–99006.

United States Court of Appeals, Ninth Circuit.

Filed March 31, 2015.

John R. Grele (argued), Tiburon, California; and David W. Fermino, Sideman & Bancroft, San Francisco, CA, for Petitioner–Appellant.

Barry J. Carlton (argued), Supervising Deputy Attorney General, San Diego, CA, for Respondent–Appellee.

Appeal from the United States District Court for the [Redacted] District of California, [Redacted], District Judge, Presiding. D.C. No. [Redacted].

Before: HARRY PREGERSON, STEPHEN REINHARDT, and KIM McLANE WARDLAW, Circuit Judges.

OPINION

REINHARDT, Circuit Judge:

I. Introduction

In 1984, a house in California was burglarized and a number of items were stolen. K.H. and M.H. resided there with M.H.'s young children, a live-in babysitter, L.R., and her daughter. Petitioner John Doe,¹ who was living at the time in a vacant house adjacent to the property, was arrested in connection with the burglary, but then released.

Soon after, while K.H. and M.H. were not at home, their house was burglarized again. L.R. was murdered, having been beaten, stabbed, and strangled. Her body was found supine on the bed in the master bedroom, with her hands bound behind her back. She was naked from the waist down, with her legs open, and a vibrator near her body. A number of items were stolen.

After an investigation, Doe was arrested. He was charged with one count of murder and two counts of burglarizing the home. Special circumstances of felony-murder-burglary and felony-murder-rape were alleged; also alleged was a prior felony conviction for an armed robbery committed in the Southern state where Doe grew up. J.B., who had never before worked on a case in which the death penalty was at issue, was appointed to represent Doe.² He hired an investigator, D.S., who interviewed potential witnesses in California and in Doe's home state.³

Doe pleaded not guilty to the charges and denied the allegations. The jury returned verdicts finding Doe guilty of murder and both counts of burglary. The jury also rendered a finding of true on the felony-murder-burglary special-circumstance allegation, and a finding of not true on the felony-murder-rape special-circumstance allegation. At the penalty phase, the jury returned a sentence of death.⁴

The California Supreme Court denied Doe's direct appeal, and the Supreme Court denied his petition for certiorari. The California Supreme Court also denied Doe's habeas petition, twice.

Doe filed a federal habeas petition, which was also denied. The district court affirmed the conviction, rejecting a number of guilt-phase challenges. As for Doe's claim that he had received ineffective assistance of counsel at the penalty phase of his trial, the court found that counsel for Doe had performed deficiently in failing to investigate and present various categories of mitigating evidence. However, the district court concluded that Doe could not establish that he had been prejudiced as a result, as required under Strickland v. Washington, 466 U.S. 668, 695, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

We agree with the district court that Doe is not entitled to reversal of his conviction on the basis of the claims presented in the petition before us. With respect to the penalty-phase claim, we agree that defense counsel was ineffective but disagree with the conclusion that Doe was not prejudiced. Accordingly, we affirm Doe's conviction but reverse as to his sentence, and instruct the district court to grant the writ.

II. Standard of Review

This case is unusual in that Doe filed his federal habeas petition in 1995, prior to the passage of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Accordingly, the parties agree that his petition is governed by pre-AEDPA standards of review. See Comer v. Schriro, 480 F.3d 960, 980 (9th Cir.2007). “Under these standards state court judgments of conviction and sentence carry a presumption of finality and legality and may be set aside only when a state prisoner carries his burden of proving that his detention violates the fundamental liberties of the person, safeguarded against state action by the Federal Constitution.” Id. (citations and internal quotation marks omitted). “A state court's conclusion that a constitutional error was harmless is reviewed de novo.” Daniels v. Woodford, 428 F.3d 1181, 1196 (9th Cir.2005). In this analysis, the additional deference required by AEDPA does not apply.

This court reviews de novo the district court's denial of habeas relief. See Alcala v. Woodford, 334 F.3d 862, 868 (9th Cir.2003). Underlying factual determinations made by the district court are reviewed for clear error. See Hovey v. Ayers, 458 F.3d 892, 900 (9th Cir.2006). Determinations by the district court of legal questions or mixed questions of law and fact are reviewed de novo. Frierson v. Woodford, 463 F.3d 982, 988 (9th Cir.2006).

III. Guilt–Phase Claims

In the petition before us, Doe raises a number of challenges to his conviction, all of which were rejected by the district court. We discuss these claims only briefly, as we agree with the result reached by the district court.

A. Rule 60(b)

First, Doe asserts that the district court abused its discretion in denying his motion to vacate the judgment in which it denied his habeas petition under Fed.R.Civ.P. 60(b). Doe requested relief under Rule 60(b) based on newly discovered physical evidence that was in the possession of the state. He alleges that the state withheld from his prior habeas counsel DNA and fingerprint evidence from the crime scene and from a related murder that it tested post-trial and was not a match to Doe. He also alleges that his prior habeas counsel was negligent in failing to pursue claims based on this evidence once she learned of it.

Doe's Rule 60(b) claims have a complicated procedural history:

In March 2005, while the present petition was still pending before the district court, Doe sent a letter to the court stating that he no longer wanted his appointed attorneys to continue to represent him, in part because they refused to investigate his claims of actual innocence. Two weeks after he reiterated that request in June, the district court denied Doe's request, and simultaneously denied his habeas petition. Doe appealed the denial of his motion for substitution of counsel, and we appointed new (present) habeas counsel, who filed his Rule 60(b) motion; the district court denied it. After consolidating Doe's appeals, we held that the district court had abused its discretion in denying Doe's request for substitution of counsel. We vacated the district court's denial of this request, together with its denial of Doe's petition for writ of habeas corpus, and remanded for further proceedings in which Doe's newly-appointed counsel would have the opportunity to make additional submissions to the district court.

The Supreme Court granted certiorari and reversed.⁵ It concluded that we had erred in holding that the district court abused its discretion in rejecting Doe's request for new counsel. In so doing, it noted that the evidence at issue might have established a Brady claim, a claim of ineffective assistance of counsel for failure to adequately investigate the murder, or a claim of innocence, especially given that no physical evidence tied Doe to the crime and that he was convicted based in part on recanted testimony. The Court went on to say, however, that all of those claims would have been new, and that as the district court subsequently found in ruling on the Rule 60(b) motion, the physical evidence was not related to the claims previously presented in Doe's habeas petition. Because these claims were new claims for relief on the merits, and did not attack a defect in the integrity of the proceedings, Doe was required to raise them not in a Rule 60(b) motion, but in a successive habeas petition. Gonzalez v. Crosby, 545 U.S. 524, 529–32, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005).⁶ We therefore do not consider them here, but may do so in the future if Doe is subsequently granted the right to file a second or successive petition.

B. Ineffective Assistance of Counsel

Second, Doe alleges that his trial counsel, J.B., provided ineffective assistance of counsel during the guilt phase of his trial. J.B.'s performance at the guilt phase of Doe's trial was certainly subpar. He failed to interview two young children who were the only eyewitnesses to the murder and who, in initial police reports, identified the killer as white (Doe is black). Although the failure to even interview the only eyewitnesses to the crime was unquestionably deficient performance, J.B. did offer a couple of reasonable justifications for his decision not to put them on as witnesses: the children appeared unreliable, and the prosecutor agreed not to tell the jury that children were present at the time of the murder if J.B. did not call them to testify.⁷

J.B. also failed to follow up on a potential alibi witness, C.L., with whom Doe claimed that he had gone drinking the night of the murder. During an interview with D.S., C.L. said that it was more likely than not that Doe was with him at a local bar on the night of the murder, given that the murder occurred on a Thursday and C.L. and Doe always went out drinking on Thursday nights. Because C.L. had no specific recollection of that particular evening, he told D.S. that he would attempt to find more definite support for the alibi. D.S. provided J.B. with a copy of a report summarizing his interview with C.L.; however, J.B. never attempted to contact C.L. again until, just before trial, when he tried to subpoena him as a trial witness.⁸ Then, when service was initially unsuccessful, J.B. made no further attempt to track him down. J.B. also acted in an objectively unreasonable way when he failed to call a blood spatter expert who stated in his report that had Doe...