Bonin v. Calderon

• Decision Date: 22 February 1996
• Docket Number: 96-99004 and 96-99005,Nos. 96-99003,s. 96-99003
• Citation: 77 F.3d 1155
• Parties: 96 Cal. Daily Op. Serv. 1320, 96 Daily Journal D.A.R. 2038 William George BONIN, Petitioner-Appellant, v. Arthur CALDERON, Warden, Respondent-Appellee (Two Cases). William George BONIN, Plaintiff-Appellant, v. Arthur CALDERON, Warden, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1155

77 F.3d 1155

96 Cal. Daily Op. Serv. 1320, 96 Daily Journal

D.A.R. 2038

William George BONIN, Petitioner-Appellant, v. Arthur CALDERON, Warden, Respondent-Appellee (Two Cases).

William George BONIN, Plaintiff-Appellant, v. Arthur CALDERON, Warden, Defendant-Appellee.

Nos. 96-99003, 96-99004 and 96-99005.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Feb. 22, 1996.

Decided Feb. 22, 1996.

Emry J. Allen, Deputy State Public Defender, Sacramento, California, for Petitioner-Appellant.

Esteban Hernandez, Deputy Attorney General, and Dane R. Gillette, Deputy Attorney General, San Diego, California, for Respondents-Appellees.

Appeals from the United States District Court for the Central District of California; Edward Rafeedie, District Judge, Presiding.

Appeal from the United States District Court for the Northern District of California; Marilyn H. Patel, District Judge, Presiding.

Before: WALLACE, Chief Judge, BRUNETTI and KOZINSKI, Circuit Judges.

WALLACE, Chief Judge:

William George Bonin, a California state prisoner awaiting execution at San Quentin State Prison, appeals from the district court's denials of two petitions for writ of habeas corpus relief under 28 U.S.C. § 2254, and an order dismissing a civil rights action under 42 U.S.C. § 1983. We have jurisdiction over these timely appeals pursuant to 28 U.S.C. §§ 1291, 2253, and we affirm.

I

The lengthy procedural history of this case and the grisly facts underlying it are discussed in Bonin v. Calderon, 59 F.3d 815 (9th Cir.1995) (Bonin II ), cert. denied, --- U.S. ----, 116 S.Ct. 718, 133 L.Ed.2d 671 (1996). In that decision, we denied Bonin's first set of habeas corpus petitions, which challenged convictions and death sentences imposed as a result of separate trials held in Los Angeles and Orange Counties. Id., aff'g, Bonin v. Vasquez, 807 F.Supp. 589 (C.D.Cal.1992) (Los Angeles County); Bonin v. Vasquez, 794 F.Supp. 957 (C.D.Cal.1992) (Orange County). On February 6, 1996, Bonin again filed two habeas corpus petitions with the California Supreme Court, which denied them on February 15, 1996. Bonin then filed two emergency petitions in the federal district court for the Central District of California challenging his death sentences and seeking an immediate stay of his imminent execution, scheduled for February 23, 1996. On February 20, 1996, the district court denied both petitions and denied Bonin's application for stay of execution, holding that the claims raised by Bonin either constituted an abuse of the writ or lacked merit. The district court granted Bonin a certificate of probable cause to appeal, which we affirmed in a separate, unpublished order.

Bonin also filed a civil rights action in the federal district court for the Northern District of California on February 16, 1996, challenging his imminent execution by means of lethal injection. Named defendants James Gomez and Arthur Calderon moved the court to dismiss Bonin's action for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). The district court held a hearing on February 20, 1996, and it subsequently dismissed Bonin's action and denied his motion for a temporary restraining order. Bonin appeals from the denials of his habeas petitions and the dismissal of his civil rights action; we consolidate these appeals and address them in turn.

II

We review de novo the denial of Bonin's petitions for writ of habeas corpus. Bonin II, 59 F.3d at 823. We may affirm on any ground supported by the record, even if it differs from the rationale of the district court. Id.

Bonin raised twelve claims in his second set of habeas petitions. Claims 1-6 allege that Bonin's counsel on direct appeal in state court (appellate counsel) was ineffective for failing to discover a potential conflict created by trial counsel's dual representation of Bonin and a potential defense witness, that trial counsel should have objected to the testimony of codefendant Gregory Miley, and that the prosecution did not disclose threats and promises made to codefendant James Munro. Bonin alleges these errors resulted in violations of his Fifth, Sixth, Eighth, and Fourteenth Amendment rights. Although he attempted to raise these claims in a motion to amend his first set of federal habeas petitions, the district court denied the motion as an abuse of the writ. See Bonin v. Vasquez, 999 F.2d 425, 426-27 (9th Cir.1993) (Bonin I ). He also raises other claims not raised in the first habeas corpus petitions: that appellate counsel provided ineffective assistance in not asserting the state trial prosecution knowingly used perjured testimony and did not disclose material impeaching evidence in violation of his Fifth, Sixth, Eighth, and Fourteenth Amendment rights; in not raising the issue of alleged hypnotically-induced testimony of Miley; and in failing to argue the constitutional inadequacy of his convictions due to Miley's testimony.

Claims 7-9 allege juror misconduct, of which Bonin learned as a result of interviews with several jurors conducted by his counsel on January 8, 1996. Claim 10 alleges that Bonin's appellate counsel provided ineffective assistance by failing to argue that executing Bonin following the State's "institutional failure"--terminating mental treatment and releasing him from custody, when the State knew Bonin would again commit crimes--constitutes cruel and unusual punishment. Bonin concedes that the factual basis for Claim 10 is found in the appellate record. Claim 11 arises from the amount of time Bonin has spent on death row. Claim 12 challenges the State's authority under California law to calendar a hearing at which Bonin's execution date was scheduled. Bonin also has challenged whether the district court's 1992 judgments were final.

State prison warden Calderon argues that all of Bonin's claims are procedurally barred because the California Supreme Court denied Bonin's petitions on adequate and independent state grounds. Alternatively, Calderon argues that Claims 1-11 constitute an abuse of the writ because they could have been brought in Bonin's first set of petitions. See McCleskey v. Zant, 499 U.S. 467, 489, 111 S.Ct. 1454, 1467-68, 113 L.Ed.2d 517 (1991) (McCleskey ) (abuse of the writ may occur where petitioner raises a claim in a subsequent petition that could have been raised in his first, regardless of whether the failure to raise it earlier stemmed from deliberate choice). Calderon also argues that Claim 12 lacks merit.

We do not need to consider whether adequate and independent state procedural grounds exist to support the state court's decisions because, even if they do, we may address the merits of Bonin's claims if he can show cause for his procedural defaults and actual prejudice as a result of the alleged violations of federal law. See Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 2565, 115 L.Ed.2d 640 (1991) (Coleman ). The same standard applies to Bonin's successive petitions if they were denied on federal grounds. Schlup v. Delo, --- U.S. ----, ---- - ----, 115 S.Ct. 851, 862-63, 130 L.Ed.2d 808 (1995) (Schlup ). Either way, we need to consider cause and prejudice.

To demonstrate cause, a petitioner must show that " 'some objective factor external to the defense impeded counsel's efforts' to raise the claim in state court." McCleskey, 499 U.S. at 493, 111 S.Ct. at 1470, quoting Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986) (Carrier ). "[C]onstitutionally ineffective assistance of counsel ... is cause." McCleskey, 499 U.S. at 494, 111 S.Ct. at 1470 (internal quotation omitted and ellipses in original). "Attorney error short of ineffective assistance of counsel, however, does not constitute cause and will not excuse a procedural default." Id. Thus, counsel's ineffectiveness will constitute cause only if it amounts to an "independent constitutional violation." Coleman, 501 U.S. at 755, 111 S.Ct. at 2567.

If Bonin can establish cause, he then must demonstrate "actual prejudice resulting from the errors of which he complains." McCleskey, 499 U.S. at 494, 111 S.Ct. at 1470 (internal quotation omitted). Even if Bonin cannot show cause and prejudice, we may consider the merits of his claims if failure to do so would result in a miscarriage of justice. Schlup, --- U.S. at ---- - ----, 115 S.Ct. at 863-64. Such injustice occurs where a "constitutional violation has probably resulted in the conviction of one who is actually innocent." Id. at ----, 115 S.Ct. at 864, quoting Carrier, 477 U.S. at 496, 106 S.Ct. at 2649; see also Schlup, --- U.S. at ----, 115 S.Ct. at 867 (adopting Carrier standard).

A.

Bonin argues that he failed to raise Claims 1-10 in his first habeas petition because he was denied effective counsel at his first appeal as of right in the state court, which he argues includes both direct appeal and habeas review, as he had the same counsel during both proceedings. Bonin therefore argues that this is his first opportunity to assert ineffective assistance of his counsel on direct appeal in state court. See Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985) (defendant has constitutional right to counsel at trial and through direct appeal).

Bonin alternatively characterizes his argument as ineffective assistance on the part of his appellate counsel and on the part of his first habeas counsel, although they were the same. He bases his argument on the contention that state law extends the Sixth Amendment right to effective assistance of counsel on direct appeal to first habeas proceedings. See In re Clark, 5 Cal.4th 750, 21 Cal.Rptr.2d 509, 855 P.2d 729 (1993) (Clark ). Clark, however, recognizes only a state-law right to competent counsel in a habeas corpus proceeding. See id. at 780, 21 Cal.Rptr.2d 509, 855 P.2d 729 ("Regardless of whether a constitutional right to counsel exists, a petitioner who is represented by counsel when a petition for writ of...