Cummings v. Martel

• Decision Date: 11 August 2015
• Docket Number: No. 11–99011.,11–99011.
• Citation: 796 F.3d 1135
• Parties: Raynard Paul CUMMINGS, Petitioner–Appellant, v. Michael MARTEL, Warden, California State Prison at San Quentin, Respondent–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

796 F.3d 1135

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.

Argued and Submitted Oct. 9, 2014.

Filed Aug. 11, 2015.

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 Peakheart, Los Angeles, CA, 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, CA, for Respondent–Appellee.

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

Before: SIDNEY R. THOMAS, Chief Judge, and DIARMUID F. O'SCANNLAIN and M. MARGARET McKEOWN, Circuit Judges.

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 (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 (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 (1978). The court rejected both claims. Cummings, 18 Cal.Rptr.2d 796, 850 P.2d at 32, 37–38. Justice Mosk dissented as to the Wheeler claim. Id. 18 Cal.Rptr.2d 796, 850 P.2d at 72.

Cummings next filed a petition for habeas relief with the California Supreme Court, alleging dozens of errors and supported by over 200 exhibits. The court rejected each of his claims as “untimely” and “lack[ing] merit.”

Cummings then filed a petition for habeas corpus in the Central District of California on July 22, 1997. The court stayed federal proceedings while Cummings filed additional habeas claims with the California Supreme Court, including a claim that he was denied effective assistance of counsel at sentencing. When those claims were rejected, Cummings filed an amended habeas petition on October 13, 1998. The district court considered and denied each of Cummings's claims over the ensuing years, entering a final judgment denying his petition on July 28, 2011.

The district court granted a Certificate of Appealability for Cummings's claims that La Casella's testimony violated his due process rights and that he was denied effective assistance of counsel at his sentencing proceedings. We ordered supplemental briefing on Cummings's objection to the peremptory strikes under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and now grant the Certificate of Appealability on that issue.

Standard of Review

Cummings's petition is governed by the Anti–Terrorism and Effective Death PenaltyAct (AEDPA) of 1996. 28 U.S.C. § 2254. We may grant his petition only if the California Supreme Court's decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” or was “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” Id. § 2254(d).

This is a demanding standard. Cummings is not entitled to relief if the state court is merely “incorrect.” Rather, we may only grant his petition if the state court's decision was “unreasonable.” See Renico v. Lett, 559 U.S. 766, 773, 130 S.Ct. 1855, 176 L.Ed.2d 678 (2010). The Supreme Court recently defined “unreasonable” as a decision “so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011).

Analysis

I. The Turner Claim—La Casella's Testimony.

Cummings first alleges that the prosecution violated his due process rights by calling as a witness Deputy David La Casella, who served as a courtroom bailiff and security officer during a portion of Cummings's trial. La Casella testified that he overheard Cummings talking with Gay in their holding cells during a break in trial proceedings. During that conversation, Cummings stated that the bullet identified by the medical examiner as “number six” was “the one I put in the m–––f––––.” Based on the tone and circumstances of the conversation, La Casella understood this statement as Cummings's confession to firing the first shot at Officer Verna. Cummings argues the former bailiff's testimony violated due process because La Casella had undue influence by virtue of his role as the jury's “official guardian.”

Turner deals with a seldom-litigated principle of criminal procedure, so we begin with an explanation of that case and its lone sequel in the Supreme Court, Gonzales v. Beto, 405 U.S. 1052, 92 S.Ct. 1503, 31 L.Ed.2d 787 (1972) (per curiam).

In Turner,...