Baylor v. Estelle

• Decision Date: 04 September 1996
• Docket Number: No. 95-56124,95-56124
• Citation: 94 F.3d 1321
• Parties: 96 Cal. Daily Op. Serv. 6608, 96 Daily Journal D.A.R. 10,835 Ronnie Earl BAYLOR, Petitioner-Appellee, v. Wayne ESTELLE, Warden; Attorney General of the State of California, Respondents-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1321

94 F.3d 1321

96 Cal. Daily Op. Serv. 6608, 96 Daily Journal

D.A.R. 10,835

Ronnie Earl BAYLOR, Petitioner-Appellee, v. Wayne ESTELLE, Warden; Attorney General of the State of California, Respondents-Appellants.

No. 95-56124.

United States Court of Appeals Ninth Circuit.

Argued and Submitted June 4, 1996.

Submission Vacated June 5, 1996.

Resubmitted July 26, 1996.

Decided Sept. 4, 1996.

Alene M. Games, Deputy Attorney General, Los Angeles, California, for respondents-appellants.

Seymour I. Cohen, Torrance, California, for petitioner-appellee.

Appeal from the United States District Court for the Central District of California, David V. Kenyon, District Judge, Presiding. D.C. No. CV-91-3752-KN(EE)

Before: BRUNETTI and RYMER, Circuit Judges, and TANNER, ^* District Judge.

RYMER, Circuit Judge:

Ronnie Earl Baylor's trial counsel failed to follow-up on a criminalist's report that concluded that a semen sample taken from one of the victims he was convicted of sexually assaulting might not have come from Baylor. Baylor's petition for writ of habeas corpus filed in the California Supreme Court, which raised ineffective assistance of counsel, was denied without citation to authority; his federal petition pursuant to 28 U.S.C. § 2254 was granted following an evidentiary hearing. The state has timely appealed, challenging the writ under the "old law," and arguing in addition that the new provisions of § 2254 ¹ (enacted April 24, 1996, after the district court's decision was rendered and opening briefs were filed) in the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. 104-132, 110 Stat. 1214, (Antiterrorism Act), apply to this appeal and also require reversal.

Because we affirm the district court's writ of habeas corpus, we must decide whether § 2254(d), upon which the state relies, requires a different result. Whether or not the new Act will apply to other cases on appeal, Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), has long been clearly established federal law determined by the Supreme Court of the United States. We therefore conclude that our analysis in this case is not affected by § 2254(d).

We have jurisdiction, 28 U.S.C. §§ 1291, 2253, and affirm.

I

Baylor was charged with forcible rape, forcible sodomy, assault with intent to commit rape and related burglary and robbery of two victims occurring in December 1986 and January 1987. Several months before trial, David Stockwell, a criminalist in the Sheriff's Crime Laboratory, issued a report in which he compared a blood and saliva sample from Baylor with seminal fluid from vaginal swabs obtained from the first victim, and with semen stains from items of clothing from the second victim. Stockwell concluded that the results would tend to eliminate Baylor as the semen donor because Baylor is a "secretor" and the semen donor wasn't, but that there is a possibility that Baylor mimics a nonsecretor and that this theory could not be tested without a liquid semen sample from Baylor. Baylor's counsel knew about the report before trial but neither followed-up with Stockwell nor had Baylor tested by another expert. While counsel tried to subpoena Stockwell during trial, it turned out that Stockwell was on vacation; without a foundation, the report was, of course, inadmissible.

At trial, no witness identified Baylor and there was no physical evidence linking him to the crimes. However, Baylor had confessed, in some detail, on tape, to detective Roderick, who testified; Baylor also testified, offering an alibi (which his wife corroborated for the first victim) and recanting his confession, saying that he confessed only because Roderick threatened him and fed him the details.

The jury convicted Baylor on all counts, and he was sentenced to a term of 16 years in custody. After his sentence was affirmed on direct appeal, Baylor filed a petition for writ of habeas corpus with the California Supreme Court June 19, 1990, which was denied August 15, 1990 without citation to authority. Baylor then filed his petition for writ of habeas corpus in the district court, alleging that trial counsel's failure to get the Stockwell report admitted into evidence was ineffective assistance. Although the district court initially adopted the Findings, Conclusions and Recommendations of the magistrate judge denying the petition on the ground that Baylor had not shown prejudice in the absence of evidence that he was a nonsecretor, the court granted Baylor's motion for relief from judgment and ordered serological testing of his seminal fluid. Based on laboratory results and the opinions of both a defense expert as well as an independent expert that the semen on the vaginal swabs is genetically incompatible with originating from Baylor, the district court found that trial counsel's performance was "completely inadequate" and that "there is at least a reasonable probability that the evidence presented would have tended to show that Petitioner could not have been the source of the semen found in [the] victim." The court further concluded that, even in the face of the strong evidence provided by Baylor's taped confession, "there is a reasonable probability that the evidence that would have been presented but for counsel's ineffective assistance would have injected reasonable doubt in the jurors' minds in regards to all of Petitioner's convictions."

II

A

The state argues that Baylor was not denied effective assistance for a variety of reasons that are unpersuasive to us. Among them: trial counsel tried to check on Stockwell's availability before trial; he subpoenaed Stockwell when he found out, during trial, that the district attorney didn't intend to call him; when he learned that Stockwell was on vacation, he tried to get the report admitted anyway, which the court declined to do; he discussed a writ of prohibition with Baylor that would have continued the trial, but Baylor didn't "want to continue this"; and he could reasonably have decided to attack or minimize Baylor's confession instead of pursuing Stockwell's report, which he thought was inconclusive.

We have difficulty understanding how reasonably competent counsel would not recognize "the obvious exculpatory potential of semen evidence in a sexual assault case," Thomas v. Goldsmith, 979 F.2d 746, 750 n. 2 (9th Cir.1992), particularly when the criminalist's report plainly indicates that the donor was an ABO nonsecretor whereas Baylor was an ABO type "O" secretor and that this "would thus eliminate" Baylor as the perpetrator unless a test (for the H antigen level) on a liquid semen sample showed that he mimicked a nonsecretor, in which case he would conform to the semen donor profile. Whether or not Stockwell's report was itself conclusive, it was one test away from tilting the scale powerfully in Baylor's direction. Even without further testing, Stockwell's report would have greatly decreased the odds that Baylor was the donor (as Stockwell testified at the evidentiary hearing, there was only a 5% likelihood that a secretor would mimic a nonsecretor), and buttressed the credibility of Baylor's alibi and recantation at trial. For these reasons, we agree with the district court that counsel did not give reasonably effective assistance. Strickland, 466 U.S. at 691, 104 S.Ct. at 2066 (counsel "has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary"); see, e.g., Sanders v. Ratelle, 21 F.3d 1446, 1456 (9th Cir.1994) (counsel ineffective where he knows of, yet fails to investigate,...