Visciotti v. Martel

• Decision Date: 17 October 2016
• Docket Number: No. 11-99008,11-99008
• Citation: 862 F.3d 749
• Parties: John Louis VISCIOTTI, Petitioner-Appellant v. Michael MARTEL, Respondent-Appellee
• Court: U.S. Court of Appeals — Ninth Circuit

862 F.3d 749

John Louis VISCIOTTI, Petitioner-Appellant

v.Michael MARTEL, Respondent-Appellee

No. 11-99008

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 12, 2013, Pasadena, California

Filed October 17, 2016

Amended July 6, 2017

Mark R. Drozdowski (argued), Deputy Federal Public Defender; K. Elizabeth Dahlstrom, Research & Writing Specialist; Hilary Potashner, Federal Public Defender; Office of the Federal Public Defender, Los Angeles, California; Statia Peakheart, Los Angeles, California; for Petitioner-Appellant.

Meagan J. Beale (argued), Deputy Attorney General; Holly Wilkens, Supervising Deputy Attorney General; Julie L. Garland, Senior Assistant Attorney General; Kamala D. Harris, Attorney General; Office of the Attorney General, San Diego, California; for Respondent-Appellee.

Before: Harry Pregerson, A. Wallace Tashima, and Marsha S. Berzon, Circuit Judges.

Concurrence by Judge Berzon

ORDER

The opinion filed October 17, 2016 is amended as follows:

1. At page 48, footnote 15 of the opinion, delete "Because we conclude that counsel's performance was not deficient, we do not consider the prejudice prong of the Strickland analysis." Add the following text in its place:

The Supreme Court has recently held that a petitioner claiming that trial counsel was ineffective for failing to object to the closure of voir dire bears the burden of demonstrating prejudice.

Weaver v. Massachusetts , No. 16-240, ––– U.S. ––––, 137 S.Ct. 1899, 198 L.Ed.2d 420, 2017 WL 2674153, slip op. at 11–14 (U.S. June 22, 2017). Because of our holding that counsel's performance was not ineffective, we need not determine whether Visciotti could demonstrate prejudice. We note, however, that it is extremely dubious that he could.

With the aforementioned change, the panel has unanimously voted to deny appellant's petition for rehearing. Judge Berzon has voted to deny the petition for rehearing en banc. Judges Pregerson and Tashima recommend denial of the petition for rehearing en banc.

The full court has been advised of the petition for rehearing en banc, and no judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35.

The petition for rehearing is denied and the petition for rehearing en banc is rejected. No new petition for panel rehearing or petition for rehearing en banc will be entertained.

OPINION

BERZON, Circuit Judge:

In 1983, an Orange County jury convicted John Visciotti of first-degree murder, attempted murder, and robbery. The same jury then sentenced Visciotti to death.

On direct, automatic appeal, the California Supreme Court affirmed the judgment in its entirety. People v. Visciotti , 2 Cal.4th 1, 5 Cal.Rptr.2d 495, 825 P.2d 388 (1992) ("Visciotti I "). Visciotti filed a state petition for writ of habeas corpus, alleging ineffective assistance of his counsel (IAC) during the guilt and penalty phases of his trial in violation of the Sixth Amendment. See Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The California Supreme Court assumed that counsel afforded Visciotti "inadequate representation in some respects" during the penalty phase, but determined that Visciotti was not prejudiced and so denied his petition. In re Visciotti , 14 Cal.4th 325, 330, 58 Cal.Rptr.2d 801, 926 P.2d 987 (1996) ("Visciotti II ").

Visciotti next brought a federal habeas petition, alleging, among many other claims, ineffective assistance of counsel during the guilt and penalty phases of his trial. The district court granted Visciotti's habeas petition as to the penalty phase and denied it as to his conviction. We affirmed. See Visciotti v. Woodford , 288 F.3d 1097 (9th Cir. 2002) ("Visciotti III "). The United States Supreme Court summarily reversed our decision, holding that we "exceed [ed] the limits imposed on federal habeas review by" the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214 (codified at 28 U.S.C. § 2254 ). Woodford v. Visciotti , 537 U.S. 19, 20, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002) (per curiam) ("Visciotti IV ").

Following remand and further proceedings, the district court denied Visciotti's remaining claims. Visciotti appeals that denial. He asserts two species of claims. First, he contends that his counsel's ineffective assistance during the guilt and penalty phases of trial requires habeas relief as to his death sentence. Acknowledging that the Supreme Court expressly denied relief on his ineffective assistance of counsel claim, he argues that the Court did not decide the particular claims he now appeals. Second, he claims that the trial judge's closure of the death qualification voir dire proceedings violated his Sixth Amendment right to a public trial.

I. BACKGROUND

Visciotti I extensively details the facts of this case. 2 Cal.4th at 28–33, 5 Cal.Rptr.2d 495, 825 P.2d 388. We thus recite only a brief summary of the events here, as described by the Supreme Court in Visciotti IV .

[Visciotti] and a co-worker, Brian Hefner, devised a plan to rob two fellow employees, Timothy Dykstra and Michael Wolbert, on November 8, 1982, their payday. They invited the pair to join them at a party. As the four were driving to that supposed destination in Wolbert's car, [Visciotti] asked Wolbert to stop in a remote area so that he could relieve himself. When all four men had left the car, [Visciotti] pulled a gun, demanded the victims' wallets (which turned out to be almost empty), and got Wolbert to tell him where in the car the cash was hidden. After Hefner had retrieved the cash, [Visciotti] walked over to the seated Dykstra and killed him with a shot in the chest from a distance of three or four feet. [Visciotti] then raised the gun in both hands and shot Wolbert three times, in the torso and left shoulder, and finally, from a distance of about two feet, in the left eye. [Visciotti] and Hefner fled the scene in Wolbert's car. Wolbert miraculously survived to testify against them.

Visciotti IV , 537 U.S. at 20, 123 S.Ct. 357.¹

A. Trial

Visciotti's parents retained Roger Agajanian for representation in the pretrial proceedings, at the trial, and on appeal. Agajanian was admitted to the bar in July 1973, had never before the Visciotti case tried a capital case that went to a jury, and had never conducted a penalty phase trial. See Visciotti II , 14 Cal.4th at 336, 58 Cal.Rptr.2d 801, 926 P.2d 987.

At the outset of Visciotti's 1983 trial, the court mentioned that it would conduct "sequestered voir dire." The court explained to the pool of prospective jurors that, because the state could seek the death penalty, "we must ... inquire of each prospective juror individually to determine in private with just the court, the two attorneys, possibly the defendant and the court personnel present, your attitudes and ... attempt to determine if there exists any prejudice or bias that may affect your attitude toward the imposition of the capital punishment." On July 5, 6, 7, 11, 12, 13, and 14, the court conducted the death qualification voir dire. The clerk's transcript for each day reveals that the examinations were conducted "in chambers," in the presence of only the court, counsel, court reporters, and, some of the time, Visciotti.² Agajanian never objected to this practice on the record. Nor did the judge make findings on the record justifying the private voir dire sessions.

The prosecution's case was "based in major part on the testimony of Michael Wolbert, and on [Visciotti's] confessions." Visciotti I , 2 Cal.4th at 28, 5 Cal.Rptr.2d 495, 825 P.2d 388. Of particular relevance to this appeal, the parties agreed at the start of trial that the prosecution would not in its guilt phase case-in-chief present evidence of Visciotti's previous conviction for assaulting William Scofield with a deadly weapon. Visciotti had pleaded guilty to that offense in 1978 and served time in state prison. The prosecution abided by this agreement.

Agajanian nevertheless had Visciotti testify about his criminal history, including his 1978 conviction:

In his guilt phase testimony, [Visciotti] claimed that the 1978 incident occurred when two men who had a problem with his roommate, Doug Favello, kicked in the door of the apartment he shared with Favello, ran in, and cut Favello's throat. A third person with a gun remained at the door. [Visciotti] testified that he picked up the knife dropped by the person who had stabbed Favello, ran after the fleeing intruders, and stabbed the one who had slashed Favello's throat just as that person (Scofield) was trying to enter his own room. On cross examination [Visciotti] conceded that he and several friends went to Scofield's room later that night, denied that they had kicked in the door to that room or that anyone had been in bed in the room, and denied seeing, let alone stabbing, a woman who had been in the room.

Visciotti I , 2 Cal.4th at 30 n.5, 5 Cal.Rptr.2d 495, 825 P.2d 388.

On rebuttal, the prosecution called Robert D. McKay, a Crime Scene Investigator for the Anaheim Police Department, to contradict Visciotti's testimony concerning the 1978 incident. McKay had investigated the scene of the 1978 incident, including Scofield's room. He testified with respect to the door to the apartment that it "appeared it had been forced open," as the door molding and latching had been partially destroyed and there was a hole in the adjoining wall from "where the doorknob would have struck the wall." He authenticated several photographs he had taken of the crime scene, including images of two knives, blood-stained bedding, and the damaged door to the apartment.

That same night, at a hospital, McKay observed and photographed two injured parties: Scofield and Kathy Cusack. He authenticated at trial a photograph he had taken of several of Cusack's stab wounds while she lay half naked on a table in the hospital emergency room. McKay testified that Cusack suffered from seven wounds, including "a deep laceration to the lower right...