Clark v. Chappell

Decision Date05 September 2019
Docket NumberNo. 14-99005,14-99005
Citation936 F.3d 944
Parties Richard Dean CLARK, Petitioner-Appellant, v. Kevin CHAPPELL, Warden, Respondent-Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

John R. Grele (argued), San Francisco, California, for Petitioner-Appellant.

Alice B. Lustre (argued), Deputy Attorney General; Glenn R. Pruden, Supervising Deputy Attorney General; Jeffrey M. Laurence, Senior Assistant Attorney General; Xavier Becerra, Attorney General; Office of the Attorney General, San Francisco, California; for Respondent-Appellee.

Before: Consuelo M. Callahan, Sandra S. Ikuta, and John B. Owens, Circuit Judges.

Per Curiam

California state prisoner Richard Dean Clark appeals from the district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition challenging his conviction and capital sentence for the first-degree murder and rape of fifteen-year-old Rosie Grover in 1985.

On appeal, Clark raises sixteen claims, of which six were certified: (1) ineffective assistance of counsel for failing to advise Clark to accept a plea offer; (2) violation of Clark’s rights to due process and an impartial jury by juror misconduct; (3) ineffective assistance of counsel for calling Dr. Mayland to testify at the pre-trial suppression hearing; (4) ineffective assistance of counsel in preparing and presenting expert testimony; (5) ineffective assistance of counsel for failing to investigate and present evidence of Clark’s fetal alcohol exposure, traumatic birth, and the ensuing effects from both; and (6) ineffective assistance of counsel for failure to argue that Dean "Dino" Stevens was an alternative suspect or co-participant and prosecutorial misconduct in failing to disclose information about Dino. Clark also raises ten uncertified claims, six of which we grant a certificate of appealability ("COA") and deny on the merits and three of which fail to satisfy the COA standard.

Because Clark’s federal habeas petition was filed before April 24, 1996, the habeas standards in effect prior to the implementation of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") apply. Under pre-AEDPA standards, both questions of law and mixed questions of law and fact are subject to de novo review, which means that a federal habeas court owes no deference to a state court’s resolution of such legal questions (in contrast with post-AEDPA standards). See Williams v. Taylor , 529 U.S. 362, 400, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) ; see also Robinson v. Schriro , 595 F.3d 1086, 1099 (9th Cir. 2010). But the state court’s factual findings are entitled to a presumption of correctness unless one of the exceptions under 28 U.S.C. § 2254(d) (1991) is met.

Clark’s numerous ineffective assistance of counsel claims, governed by Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), are unavailing because Clark does not show that trial counsel’s performance fell below an objective reasonableness standard at the time of the trial in 1987. Furthermore, for the few instances where counsel’s conduct was deficient, Clark has not shown that there is a reasonable probability that the outcome would have been different. His efforts to show prejudice are undercut by the extensive evidence presented at trial, including his two detailed confessions and the physical evidence confirming his involvement in the crimes. The post-conviction mitigating evidence Clark marshals to support his argument that the penalty phase would have been different is cumulative of the mitigating evidence presented at the guilt and penalty phases of trial. We similarly find unpersuasive Clark’s conflict of interest claim under Mickens v. Taylor , 535 U.S. 162, 171, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002), based on his first attorney’s election as District Attorney and his subsequent attorney’s representation of witnesses.

On one issue, juror misconduct, we remand to the district court to decide Clark’s claim in light of our recent decision in Godoy v. Spearman , 861 F.3d 956 (9th Cir. 2017) (en banc).

We otherwise deny habeas relief. We also affirm the district court’s denial of evidentiary hearings for all claims (with the exception of the juror misconduct issue), concluding Clark has not shown that he would be entitled to relief on his proffered facts.

I. FACTUAL BACKGROUND
A. The Crimes

Around 4:00 a.m. on July 19, 1985, fifteen-year-old Rosie Grover arrived at the Greyhound bus depot in Ukiah, California. After unsuccessfully attempting to obtain a ride, she started walking to her mother’s house. Several hours later, her body was found in a nearby creek-bed. Grover had been raped, stabbed with a sharpened screwdriver, and bludgeoned in the head and neck with two concrete blocks.

At the time of the crimes, Defendant-Appellant Richard Dean Clark, then twenty-one years old, was living with and caring for his paraplegic friend, David Smith, in Ukiah. On the day before the crimes, Clark and Smith spent the afternoon drinking beer, ingesting cocaine, and smoking marijuana. Clark drank three or four beers at the local bar. Clark and Smith both ingested cocaine at the house of Smith’s stepsister, Michelle Stevens. Although Smith had seen Clark use methamphetamine in the past, he did not see Clark use methamphetamine that day. Clark smoked between two and five marijuana cigarettes.

Later that evening, a fight broke out between Clark and Michelle’s boyfriend, Matt Williams. According to Williams, Clark "looked like he was on something" and "got kind of violent, shadow boxing around the house and throwing punches." Around 10:00 p.m., Clark announced that he "was going to beat somebody up and rob them" and then he left with Dino Stevens—Michelle’s stepbrother.

Clark and Dino played pool at Munchie’s, a local pool hall, for approximately 30 to 40 minutes. After they left the pool hall, they went to the home of Robyn Boyd, who lived near the Ukiah bus depot. Clark and Dino left Boyd’s house around 12:30 a.m. Upon leaving, the men went their separate ways.

Little evidence, other than Clark’s statements to the police, establish Clark’s location and movements from the time that he left Boyd’s house until he entered a restaurant later that morning.

On July 19 at about 6:15 a.m., Clark walked into Ron-Dee-Voo Restaurant near the Greyhound bus depot with a partially empty wine cooler bottle in his hand. He told Karen Mertle, a waitress, that he found a girl’s body in a nearby ditch who was hurt "real bad" and "maybe raped." He handed Mertle the wine cooler bottle, which she saved to give to the police. Mertle testified that Clark did not appear intoxicated. Several witnesses from the restaurant testified that Clark did not appear intoxicated or upset.

Officer Wayne McBride of the Ukiah Police Department arrived at the restaurant at around 6:34 a.m. Clark told Officer McBride that he found the body when he was taking a "shortcut" to buy cigarettes at a convenience store and that he checked the body for a pulse and may have touched the suitcase found near the body. Officer McBride testified that Clark was wearing sunglasses and spoke rapidly but did not appear to be intoxicated and did not smell of alcohol.

Detectives Fred Kelley and Edward Gall collected physical evidence at the crime scene. Grover’s body was partially clothed with her jeans buttoned, a cloth belt undone, her jacket and blouse open exposing her bra, and her shoes and tank-top lying on the ground nearby. Her duffle bag and suitcase were about ten feet away from her body, and inside her duffle bag was the same brand and flavor of wine coolers as the bottle Clark had given to Mertle. Two bloody concrete blocks—the heavier of the two weighing about 18.5 pounds—were found near Grover’s body with traces of human blood and hair, consistent with Grover’s.

After searching the crime scene, Detectives Kelley and Gall went to Michelle’s house, where Clark and Smith were residing at the time, and received Smith’s permission to search Smith’s car. Detective Kelley found a pair of Levi’s jeans and a vest-jacket on the rear seat with blood splattered on the jeans and smeared on the vest. Smith and Michelle identified the clothing as having been worn by Clark the previous evening. The blood was found to be consistent with both Grover’s and Clark’s blood.

One week later, a hand-sharpened screwdriver with traces of human blood was found in Smith’s car. On the shoes Clark wore when he was arrested, there was splattered human blood and a hair that was found to be consistent with Grover’s hair and inconsistent with Clark’s hair. Clark "could not be ruled out" as the source of the semen found in the victim’s underwear, and the pubic hair found in the victim’s underwear was consistent with Clark’s.

B. Clark’s Confessions

Clark gave three custodial statements to the police on the day of his arrest. First, at the police station and prior to his arrest, Clark waived his Miranda rights and spoke to Detectives Kelley and Gall, essentially repeating the same story he told Officer McBride earlier in the morning at the restaurant.

Second, after Clark’s arrest and booking, Detectives Kelley and Gall transported Clark to the hospital to obtain a sample of Clark’s blood. During the drive, Clark confessed to killing Grover. During the drive, Clark suddenly asked, "What can someone get for something like this, thirty years?" Detective Gall testified at trial that he had responded: "Probably not unless you were a mass murderer." Fifteen to twenty-five seconds following this exchange Clark said, "I want this on the record. I’m guilty. I killed her. What do you want to know?" Clark told the officers that he was walking southbound on State Street when he met Grover. Clark told the officers that Grover "started to come on to him." The officer recalled that Clark said that Grover "flashed" her breast at him. Clark said that he and Grover had consensual sexual intercourse, but that afterward Grover...

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