Belmontes v. Ayers

• Decision Date: 13 June 2008
• Docket Number: No. 01-99018.,01-99018.
• Citation: 529 F.3d 834
• Parties: Fernando BELMONTES, Jr., Petitioner-Appellant, v. Robert L. AYERS, Jr., Warden for the California State Prison at San Quentin, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

529 F.3d 834

Fernando BELMONTES, Jr., Petitioner-Appellant, v. Robert L. AYERS, Jr., Warden for the California State Prison at San Quentin, Respondent-Appellee.

No. 01-99018.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 15, 2007.

Decided June 13, 2008.

Eric Multhaup, Mill Valley, CA, and Christopher H. Wing, Sacramento, CA, for the petitioner-appellant.

Edmund G. Brown, Jr., Attorney General for the State of California, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Eric L. Christoffersen, Deputy Attorney General, and Mark A. Johnson, Deputy Attorney General, Sacramento, CA, for the respondent-appellee.

Appeal from the United States District Court for the Eastern District of California David F. Levi, District Judge, Presiding. D.C. No. CV-89-00736-DFL.

Before: STEPHEN REINHARDT, DIARMUID F. O'SCANNLAIN, and RICHARD A. PAEZ, Circuit Judges.

Opinion by Judge REINHARDT; Dissent by Judge O'SCANNLAIN.

REINHARDT, Circuit Judge:

Once again we are presented with a case in which an individual sentenced to death received inadequate representation by his counsel at the penalty phase of his trial. Here, the question is only whether counsel's deficient performance was prejudicial. There can be little doubt that it was.

Fernando Belmontes, Jr. was convicted of first degree murder and sentenced to death in California state court in 1982. After his conviction and sentence were affirmed by the California courts on direct appeal and in state post-conviction proceedings, Belmontes filed a petition for writ of habeas corpus in the district court, seeking to set aside both his conviction and sentence. In 2000, the district court found that counsel's representation during the penalty phase was deficient, but that his deficient performance did not prejudice Belmontes. In 2001, the court denied the petition in its entirety. Belmontes appealed. In 2003, we affirmed the denial of relief with respect to Belmontes's guilt-phase claims, but reversed the denial of penalty-phase relief on the ground that the jury was improperly instructed as to the mitigating evidence it was required to consider. Belmontes v. Woodford, 350 F.3d 861 (9th Cir.2003) ("Belmontes I"). In 2005, the Supreme Court vacated our judgment and remanded for reconsideration in light of Brown v. Payton, 544 U.S. 133, 125 S.Ct. 1432, 161 L.Ed.2d 334 (2005). Brown v. Belmontes, 544 U.S. 945, 125 S.Ct. 1697, 161 L.Ed.2d 518 (2005). We again granted penalty-phase relief because, unlike in Payton, Belmontes's petition was not subject to the strict requirements of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Belmontes v. Brown, 414 F.3d 1094 (9th Cir. 2005) ("Belmontes II"). In 2006, the Supreme Court again granted certiorari and by a five to four vote reversed our decision with respect to instructional error, this time on the merits. Ayers v. Belmontes, 549 U.S. 7, 127 S.Ct. 469, 166 L.Ed.2d 334 (2006). The Court then remanded, leaving us with the task of resolving Belmontes's remaining penalty-phase claims, primarily ineffective assistance of counsel.

Belmontes's remaining claims are as follows: (1) that he received ineffective assistance of counsel during the penalty phase of his trial; (2) that he was deprived of due process when the district court denied his request for an evidentiary hearing on his first claim; and (3) that he was deprived of due process and a fair penalty phase trial and subjected to cruel and unusual punishment, by (a) the admission of evidence of his prior acts of misconduct, (b) the trial court's response to questions from the jury about the consequences of their failure to agree on a unanimous verdict with respect to the penalty, and (c) the trial court's pre-judgment of Belmontes's motion to reduce his sentence. Because we conclude that Belmontes's counsel not only provided deficient representation at the penalty phase of his trial but that Belmontes was prejudiced by that deficient performance, we reverse and remand for issuance of a writ of habeas corpus and, if the State so elects, a new death penalty proceeding.¹

I. FACTUAL AND PROCEDURAL BACKGROUND

In our two prior opinions in this case, we summarized the facts and history that related to the issues before us. See Belmontes II, 414 F.3d at 1102-11; Belmontes I, 350 F.3d at 869-78 This is the first time that we have addressed the claim of penalty-phase ineffective assistance of counsel. Thus, we again recite the history and facts of this case, but this time with an emphasis on those facts that are relevant to the ineffective assistance of counsel claim, including facts that were determined during post-conviction proceedings and did not appear in our earlier opinions.

A. The Crime, Investigation, and Guilt Phase of Belmontes's trial

On the morning of Sunday, March 15, 1981, nineteen-year-old Steacy McConnell telephoned her parents and told them that she was afraid because several people, including Belmontes's eventual codefendant Domingo Vasquez, had threatened her. When McConnell's parents arrived at her residence in Victor, California several hours later, they found her lying unconscious in a pool of blood. She died shortly thereafter from cerebral hemorrhaging caused by fifteen to twenty blows to her head with an iron bar. Her house was ransacked and her stereo was missing.

On the Tuesday preceding the murder, several people, including Vasquez and another codefendant, Robert "Bobby" Bolanos, partied at McConnell's house. Although Bolanos left the residence early Wednesday morning, the party continued until Friday, when Vasquez stole a quantity of "black beauties"—amphetamine pills—from McConnell. Upon discovering the theft, McConnell threw Vasquez and his friends out of the house. The group subsequently discussed their dislike of McConnell.

The police investigation of the individuals who had been present at the party led the officers to interrogate Vasquez and Bolanos. Bolanos eventually admitted that he had been involved in the events that led to McConnell's death, and identified Vasquez and Belmontes as his coadventurers. Belmontes, who was nineteen at the time, had not been at the party, but had visited Bolanos over the weekend of the murder.

Belmontes, Bolanos, and Vasquez were each charged with first degree murder and special circumstances. However, Bolanos soon arranged a deal with the prosecution in which he agreed to testify against Vasquez and Belmontes in exchange for a guilty plea to second degree burglary and immunity on the murder charge. At Vasquez's preliminary hearing, Bolanos named Belmontes as the main assailant. After the preliminary hearing, the trial judge dismissed the special circumstances charge against Vasquez, who pled guilty to second degree murder. That left Belmontes, who alone proceeded to trial.

Bolanos was the State's principal witness. He testified that on the morning of Sunday, March 15, he and Belmontes drove to Vasquez's residence to hang out. When they arrived, Vasquez was on the phone with McConnell. When Vasquez hung up, he informed them that McConnell would not be home during the latter part of the day. The three were short of cash, and they agreed to burglarize McConnell's residence, steal her stereo, and "clean house." According to Bolanos, as the men departed Vasquez's house through the kitchen, Belmontes grabbed from the counter an iron dumb-bell bar that Vasquez's wife used for rolling tortillas.

Bolanos told the jury that the three men then drove to McConnell's in Bolanos's car and parked a short distance from the house where Belmontes stated that he would approach the house alone, on foot, carrying the metal bar in case he needed to force entry. Bolanos further testified that Belmontes said that he would gather McConnell's valuables and place them near the door to facilitate a quick getaway, and that Bolanos and Vasquez should wait for about five minutes and then bring the car around to McConnell's house.

Bolanos next testified that Belmontes walked to McConnell's residence, and, after about five minutes, Bolanos and Vasquez drove up and backed into McConnell's driveway. Bolanos heard repeated knocking or banging noises coming from within the house. Vasquez walked to the front door to assist Belmontes. Shortly thereafter, Belmontes and Vasquez emerged from the back door of the house carrying stereo components. Belmontes was sprinkled with blood and Vasquez "looked like he had seen a ghost." According to Bolanos, Belmontes stated that he had had to "take out a witness" because McConnell had been home, and explained that when McConnell heard Vasquez and Bolanos drive up, she looked away from him and he seized the opportunity to hit her with the bar.

Bolanos finally testified that, after leaving McConnell's house, the three drove to the nearby city of Galt, where they intended to fence the stereo. En route, Belmontes threw the bar out of the car window as they crossed a bridge. The trio eventually sold the stereo for $100.

Detective Holman, the lead investigator on the case, testified that Belmontes furnished three tape-recorded statements shortly after his arrest. In the first statement, he denied any involvement in the crime. In the second, he admitted the burglary but denied hitting McConnell. In the third, he admitted hitting McConnell, but insisted that he hit her only once, and then only at Vasquez's direction. He stated that the single blow he delivered caused McConnell to fall down, at which point he dropped the bar and began searching the house for valuables, leaving Vasquez alone with McConnell. Belmontes asserted that he did not pay attention to Vasquez's actions during this period and did not witness the fifteen to twenty fatal blows to the head that McConnell suffered. Holman also testified that a small drop of blood found on the tongue of one of Belmontes's shoes tested as "type O"— McConnell's blood...