796 F.3d 1135 (9th Cir. 2015), 11-99011, Cummings v. Martel

Docket Nº:11-99011
Citation:796 F.3d 1135
Opinion Judge:McKEOWN, Circuit Judge:
Party Name:RAYNARD PAUL CUMMINGS, Petitioner-Appellant, v. MICHAEL MARTEL, Warden, California State Prison at San Quentin, Respondent-Appellee
Attorney:K. Elizabeth Dahlstrom (argued), Research & Writing Attorney, Sean K. Kennedy, Federal Public Defender, Elizabeth Richardson-Royer, Deputy Federal Public Defender, Office of the Federal Public Defender, Los Angeles, California; Statia Peakhart, Los Angeles, California, for Petitioner-Appellant. L...
Judge Panel:Before: Sidney R. Thomas, Chief Judge, and Diarmuid F. O'Scannlain and M. Margaret McKeown, Circuit Judges. Partial Concurrence and Partial Dissent by Chief Judge Thomas; Partial Concurrence and Partial Dissent by Judge O'Scannlain. THOMAS, Chief Judge, concurring in part and dissenting in part: ...
Case Date:August 11, 2015
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
SUMMARY

Petitioner, convicted of first-degree murder and sentenced to death for killing a police officer, appealed the district court's denial of his habeas petition under 28 U.S.C. 2254. Petitioner alleged that the prosecution violated his due process rights by calling a witness who served as a courtroom bailiff and security officer during a portion of petitioner's trial. The court concluded that the... (see full summary)

 
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Page 1135

796 F.3d 1135 (9th Cir. 2015)

RAYNARD PAUL CUMMINGS, Petitioner-Appellant,

v.

MICHAEL MARTEL, Warden, California State Prison at San Quentin, Respondent-Appellee

No. 11-99011

United States Court of Appeals, Ninth Circuit

August 11, 2015

Argued and Submitted, Stanford, California: October 9, 2014.

Appeal from the United States District Court for the Central District of California. D.C. No. 2:95-cv-07118-CBM. Consuelo B. Marshall, Senior District Judge, Presiding.

SUMMARY[*]

Habeas Corpus / Death Penalty

The panel affirmed the district court's denial of Raynard Cummings's habeas corpus petition challenging his conviction for first-degree murder and death sentence for killing Los Angeles Police Officer Paul Verna.

Cummings alleged that the prosecution violated his due process rights under Turner v. Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965), by calling as a witness a deputy who served as a courtroom bailiff and security officer during a portion of Cummings's trial. The panel held that even under AEDPA's deferential review, the California Supreme Court erred in determining that the bailiff, who told the jury that Cummings had confessed to shooting Verna, was not a key prosecution witness under Turner. The panel affirmed the district court's denial of relief on this claim because the California Supreme Court's determination that Cummings did not satisfy the second Turner requirement -- that the testifying deputy had continuous and intimate contact with jurors -- was neither contrary to nor an unreasonable application of clearly established federal law.

The panel granted a Certificate of Appealability on Cummings's claim that the prosecutor violated Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), by exercising peremptory strikes against two prospective African American jurors. The panel concluded that the California Supreme Court did not unreasonably apply Batson to the facts in determining that Cummings did not establish that race was a substantial motivating factor in the prosecutor's decision to strike the prospective jurors.

Affirming the district court's denial of Cummings's ineffective assistance of counsel claim, the panel held that the California Supreme Court had a reasonable basis to conclude that Cummings was not prejudiced by his lawyers' presentation of mitigation of evidence at the penalty phase of his trial.

Chief Judge Thomas concurred in part and dissented in part. He agreed with the majority that the Batson and ineffective assistance claims should be denied, but dissented from the conclusion that the due process claim must be denied. He wrote that the California Supreme Court's decision to affirm the conviction cannot reasonably be squared with Turner and Gonzales v. Beto, 405 U.S. 1052, 92 S.Ct. 1503, 31 L.Ed.2d 787 (1972) (per curiam), in which the Supreme Court made clear that a criminal defendant's right to a fair trial is infringed when the government solicits key testimony from a bailiff who associated closely with the jury during the defendant's trial.

Judge O'Scannlain concurred in part, dissented in part, and concurred in the judgment. He concurred in the opinion, except as to Section I.A. He wrote separately to explain why the California Supreme Court's conclusion that the deputy was not a " key witness" under Turner must be afforded AEDPA deference.

K. Elizabeth Dahlstrom (argued), Research & Writing Attorney, Sean K. Kennedy, Federal Public Defender, Elizabeth Richardson-Royer, Deputy Federal Public Defender, Office of the Federal Public Defender, Los Angeles, California; Statia Peakhart, Los Angeles, California, for Petitioner-Appellant.

Lance E. Winters (argued), Senior Assistant Attorney General; Kamala D. Harris, Attorney General of California; Dane R. Gillett, Chief Assistant Attorney General; A. Scott Hayward, Deputy Attorney General, Los Angeles, California, for Respondent-Appellee.

Before: Sidney R. Thomas, Chief Judge, and Diarmuid F. O'Scannlain and M. Margaret McKeown, Circuit Judges. Partial Concurrence and Partial Dissent by Chief Judge Thomas; Partial Concurrence and Partial Dissent by Judge O'Scannlain.

OPINION

McKEOWN, Circuit Judge:

Raynard Cummings was convicted of first-degree murder and sentenced to death for killing Los Angeles Police Officer Paul Verna. The California Supreme Court affirmed his conviction on direct appeal. People v. Cummings, 4 Cal.4th 1233, 18 Cal.Rptr.2d 796, 850 P.2d 1 (Cal. 1993). It then denied his petitions for post-conviction relief. The district court denied Cummings's petition for a writ of habeas corpus under 28 U.S.C. § 2254. We affirm.

Factual Background

On June 2, 1983, Los Angeles Police Officer Paul Verna pulled over an Oldsmobile for rolling through a stop sign. During the traffic stop, one or more of the car's occupants shot Verna six times.

At Cummings's trial, he did not dispute that he was one of three occupants in the car when the shooting occurred. He sat in the rear passenger seat, behind a friend, Kenneth Gay, who was riding in the front seat. Cummings's wife, Pamela, was driving.

Both Gay and Cummings were charged with first-degree murder. The government contended that Cummings shot Officer Verna once, then passed the gun to Gay, who got out of the car and fired five more shots. Cummings contested the " two-shooter" theory, claiming that Gay fired all six shots.

Eyewitness accounts varied. Some witnesses lent credence to the two-shooter theory, while others expressed certainty that one person fired all six shots. Through forensic evidence and a crime scene reenactment, the prosecution sought to demonstrate that the first bullet likely came from Cummings's perch in the back seat.

After nearly six months of trial proceedings, a courtroom deputy named David La Casella overheard a conversation between Cummings and Gay in their respective holding cells. According to La Casella, Cummings told Gay that the bullet described by the medical examiner as " number six" was the " one I put in the m__-f__-" --meaning the victim, Verna. The deputy was removed from his courtroom post and the next court day testified to this exchange.

The jury convicted Cummings of first-degree murder. After a recess, the penalty phase commenced. To support its case for the death penalty, the prosecution introduced evidence that Cummings possessed a " shank" while in jail awaiting trial; participated in the robbery of a vacuum store; and schemed to use poisoned postage stamps to kill Gay and his wife, Robin Gay, to prevent them from testifying at his trial.

The prosecution also tried to introduce aggravating evidence related to Cummings's incarceration in Delaware. During that time, Cummings had altercations with two prison guards and wrote a violent, profanity-laced letter that expressed his desire to kill police officers. Following the California Supreme Court's decision in People v. Boyd, 38 Cal.3d 762, 215 Cal.Rptr. 1, 700 P.2d 782 (Cal. 1985), the trial judge ruled that the prosecution could not introduce this evidence as part of its case-in-chief because the altercations and the letter were not crimes. However, the court made clear that it would allow the prosecution to introduce this evidence as rebuttal if Cummings " open[ed] the door" during his mitigation case.

In light of this evidentiary ruling, Cummings's lawyers decided to present a " sterile" mitigation case. They told the court that, for " tactical reasons," they would " very carefully ask [] witnesses not to get into" any subjects that would lead to the admission of rebuttal evidence. They assured the judge they would avoid any discussion of Cummings's " personality or character traits." Instead, his lawyers limited mitigation evidence to Cummings's " biographical information," such as " where he was born, who his parents were, the fact they got divorced, [and] what his schooling was."

In the penalty phase, the defense team put on testimony from three witnesses. A sheriff's deputy testified about violence in jail (presumably to demonstrate Cummings's need to protect himself with a shank). Then, Cummings's older brother Darrell related some of the hardships they faced during their childhood. Darrell told the jury that their parents had " knock-down, drag-out" fights, which once culminated in their mother stabbing their father with a knife. He also explained how their father frequently beat Raynard " extremely hard" with a belt or extension cord. Darrell stated that their mother began drinking to excess when her husband left her, and he revealed that she had recently been in a mental hospital. Finally, Cummings's high school girlfriend testified about his rocky relationship with his family before his incarceration in Delaware.

During closing arguments in the penalty phase, Cummings's lawyers made only passing reference to Cummings's background and personal characteristics, instead arguing that " lingering doubt" about whether Cummings had shot Verna should lead the jury to choose a life sentence over the death penalty.

The jury voted for the death sentence, and the trial court imposed this sentence.

Procedural Background

In his appeal to the California Supreme Court, Cummings alleged that La Casella's testimony violated his due process rights as defined in Turner v. Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965), and that the prosecution's use of peremptory strikes against two black potential jurors violated People v. Wheeler, 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748 (Cal. 1978). The court rejected both claims. Cummings, 850 P.2d at 32, 37-38. Justice Mosk dissented as to the Wheeler claim. Id. at 72.

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