885 F.2d 1354 (9th Cir. 1988), 84-6433, Harris v. Pulley

Docket Nº:84-6433.
Citation:885 F.2d 1354
Party Name:Robert Alton HARRIS, Petitioner, v. R. PULLEY, Warden of the California State Prison at San Quentin, California, Respondent.
Case Date:July 08, 1988
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1354

885 F.2d 1354 (9th Cir. 1988)

Robert Alton HARRIS, Petitioner,

v.

R. PULLEY, Warden of the California State Prison at San

Quentin, California, Respondent.

No. 84-6433.

United States Court of Appeals, Ninth Circuit

July 8, 1988

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Argued Nov. 5, 1986.

Submitted June 29, 1988.

As Amended on Denial of Rehearing and Rehearing En Banc

Sept. 28, 1989.

Page 1358

Michael J. McCabe, and Charles M. Sevilla, Cleary and Sevilla, San Diego, Cal., for petitioner.

John K. Van De Kamp, Atty. Gen., State of Cal., John W. Carney, and Michael D. Wellington, Supervising Deputy Attys. Gen., San Diego, Cal., for respondent.

Julius L. Chambers, James M. Nabrit, III, John Charles Boger, Deval L. Patrick, NAACP, and Anthony G. Amsterdam, New York University School of Law, NAACP, New York City, Michael G. Millman and Eric S. Multhaup, California Appellate Project, San Francisco, Cal., for amicus curiae.

Appeal from the United States District Court for the Southern District of California.

Before ALARCON, BRUNETTI and NOONAN, Circuit Judges.

ALARCON, Circuit Judge:

Robert Alton Harris (hereinafter Harris) appeals from the denial of his petitions for a writ of habeas corpus challenging the constitutionality of his convictions for two counts of murder and the sentence of death under California's 1977 capital sentencing law. 1

PROCEDURAL HISTORY

On March 6, 1979, a California jury in a bifurcated trial convicted Harris of two counts of murder and sentenced him to death. On February 11, 1981, the California Supreme Court affirmed the convictions and the sentence of death on direct appeal. People v. Harris, 28 Cal.3d 935, 623 P.2d 240, 171 Cal.Rptr. 679 (1981). On that same date, the California Supreme Court denied Harris' petition for a writ of habeas corpus which had been filed simultaneously with his automatic appeal. The United States Supreme Court denied certiorari. Harris v. California, 454 U.S. 882, 102 S.Ct. 365, 70 L.Ed.2d 192 (1981).

On November 24, 1981, the Superior Court for San Diego County denied Harris' second state petition for a writ of habeas corpus. The California Supreme Court denied review of the petition. On June 7, 1982, the United States Supreme Court denied certiorari. Harris v. California, 457 U.S. 1111, 102 S.Ct. 2915, 73 L.Ed.2d 1322 (1982).

On March 5, 1982, Harris filed a petition for a writ of habeas corpus under 28 U.S.C. Sec. 2254 in the United States District Court for the Southern District of California, No. CV 82-0249 (hereinafter first federal petition). On March 12, 1982, the district court denied the first federal petition without an evidentiary hearing. The district court refused to stay Harris' execution, but issued a certificate of probable cause. On March 12, 1982, we issued a stay of execution pending appeal of the denial of the first federal petition for habeas corpus. While the appeal was pending in this court, Harris filed a second petition for a writ of habeas corpus in the Superior Court for San Diego County on April 16, 1982, which was denied May 4, 1982. On June 30, 1982, the California Supreme Court refused to hear the petition. On August 13, 1982, Harris filed a second petition for a writ of habeas corpus pursuant to section 2254 in the district court, No. CV 82-1005 (hereinafter second federal petition).

In Harris v. Pulley, 692 F.2d 1189 (9th Cir.1982) (per curiam) (hereinafter Harris I ), we affirmed as to some of the issues but vacated the district court's denial of the first federal petition because the California Supreme Court did not undertake proportionality review of Harris' sentence. Id. at 1196-97. We also ordered that "the district court should, if necessary, request and examine all relevant parts of the state

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court record to determine whether the record supports the state court's findings" on the discrimination and pretrial publicity claims. Id. at 1200. As to Harris' discrimination claims, we stated that "if it becomes necessary, [the district court should] provide an opportunity to develop the factual basis and arguments concerning the race-discrimination and gender-discrimination claims." Id. at 1197.

The State filed a petition for certiorari presenting the question whether proportionality review is required by the United States Constitution. 460 U.S. 1036, 103 S.Ct. 1425, 75 L.Ed.2d 787 (1983). The United States Supreme Court reversed and remanded, concluding that California's capital sentencing system is constitutional without a comparative proportionality review. Pulley v. Harris, 465 U.S. 37, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984).

Upon remand, the district court consolidated the unresolved issues contained in the first and second federal petitions. The issues we remanded to the district court raised in the first federal petition were the prejudicial effect of the pretrial publicity and the discrimination claims based on the race of the victim, and the gender and age of the defendant. In the second federal petition, Harris presented federal constitutional issues regarding (1) "death qualification" of the jury, (2) presentation to the jury of nonstatutory aggravating factors involving the defendant's "character, background, history, mental condition and physical condition," (3) ineffectiveness of counsel at the penalty phase, and (4) denial of due process for failure of the State to grant his postconviction request for a neurological examination. The district court permitted each party to submit additional briefs and affidavits on the remaining issues. The district court denied the consolidated petitions for a writ of habeas corpus and issued a certificate of probable cause.

On this appeal, Harris contends that the State violated his federal constitutional rights in the following respects:

1. He was denied his right to a fair trial before an impartial jury, and the district court did not permit an evidentiary hearing on this issue, because of the pretrial publicity;

2. He was denied effective assistance of counsel at the penalty phase of his trial under the sixth amendment;

3. He was denied a post-conviction electroencephalogram (hereinafter EEG) examination to prove ineffectiveness of trial counsel in violation of his due process rights under the fourteenth amendment;

4. He was denied his sixth amendment right to a fair and impartial jury because of the exclusion of jurors opposed to the death penalty;

5. He was denied his right to an evidentiary hearing on his equal protection claims that California's death penalty statute was applied discriminatorily based on the gender and age of the defendant, and race of the victims;

6. He was denied his right to due process because California's capital sentencing statute, Cal.Penal Code Sec. 190.3(h) (1977), permits the arbitrary consideration of a defendant's age as an aggravating factor; and,

7. He was denied his rights under the eighth and fourteenth amendments because of the instructions given to the jury at the penalty phase of the trial.

We address each of these contentions and the facts pertinent thereto under separate headings.

DISCUSSION

I. PRETRIAL PUBLICITY

Harris contends the pretrial publicity denied him a fair trial by an impartial jury in violation of the sixth amendment to the Constitution of the United States. Harris claims prejudice must be presumed in this matter because of the pervasive media coverage resulting from the public dispute between federal and state prosecutors over which office would be first to prosecute Harris. Alternatively, Harris argues that the responses given during the voir dire examination demonstrate actual prejudice to his right to a fair trial before an impartial jury.

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In Harris I, we described the nature and scope of the pretrial publicity in this matter as follows:

Pervasive media coverage of Harris and his crimes started with his televised capture for bank robbery. The pretrial publicity apparently included stories that Harris and his brother had confessed to the crimes, that Harris had previously been convicted of manslaughter and that Harris had violated his parole. Numerous editorials and letters to the editor called for the death penalty and a television poll overwhelmingly showed that viewers supported the death penalty in this case. Even the battle between the U.S. Attorney's and District Attorney's offices concerning who would have the first opportunity to prosecute Harris received extensive coverage by the local media for over two weeks. See People v. Harris, 28 Cal.3d at 965-69, 171 Cal.Rptr 679, 623 P.2d 240 (Bird, C.J., dissenting).

692 F.2d at 1199.

  1. Denial of Change of Venue

    Prior to jury selection, Harris made a motion for a change of venue pursuant to Cal.Penal Code Ann. Sec. 1033(a) (West 1985) on the ground that there was a reasonable likelihood that because of extensive publicity, a fair and impartial trial could not be had in the County of San Diego. This pretrial motion was denied. Following voir dire examination of the jury, Harris renewed his motion for a change of venue. The trial court denied the second motion. The California Supreme Court denied Harris' petition for a writ of mandate to compel the trial court to grant a change of venue without opinion.

    On direct appeal following Harris' conviction, the California Supreme Court reviewed the record and concluded that the state trial judge did not abuse his discretion in denying the motion for a change of venue. California's highest court reasoned that the size of the community dissipated the effect of the pretrial publicity and...

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