Brown v. Ornoski

• Decision Date: 19 September 2007
• Docket Number: No. 05-99008.,05-99008.
• Citation: 503 F.3d 1006
• Parties: Albert Greenwood BROWN, Petitioner-Appellant, v. Steven W. ORNOSKI, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

503 F.3d 1006

Albert Greenwood BROWN, Petitioner-Appellant, v. Steven W. ORNOSKI, Warden, Respondent-Appellee.

No. 05-99008.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 14, 2007.

Filed September 19, 2007.

Jan B. Norman, Los Angeles, CA, for the petitioner-appellant.

Barry J.T. Carlton, Supervising Deputy Attorney General, San Diego, CA, for the respondent-appellee.

Appeal from the United States District Court for the Central District of California; Audrey B. Collins, District Judge, Presiding. D.C. No. CV-94-08150-ABC.

Before: HAWKINS, SIDNEY R. THOMAS, and CARLOS T. BEA, Circuit Judges.

OPINION

MICHAEL DALY HAWKINS, Circuit Judge:

Petitioner Albert Greenwood Brown, Jr. ("Brown") was convicted in California and sentenced to death for the rape and murder of a fifteen-year-old girl. The district court denied his petition for a writ of habeas corpus, but granted a certificate of appealability ("COA") on two claims that Brown received ineffective assistance of counsel in the sentencing phase of his trial. We expanded the COA to include two additional claims, one also involving penalty phase ineffective assistance of counsel, and another involving Brown's claim that lethal injection violates the Eighth Amendment. We affirm the district court's denial of the writ.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

On October 28, 1980, about 7:30 a.m., 15-year-old Susan Jordan left her home to walk to Arlington High School. People v. Brown, 40 Cal.3d 512, 522, 230 Cal.Rptr. 834, 726 P.2d 516 (1985). She never arrived, and efforts throughout the day to locate her were unsuccessful. That evening, Susan's mother answered the telephone and a caller asked "Hello, Mrs. Jordan, Susie isn't home from school yet, is she?" Mrs. Jordan replied that she was not. The voice then declared, "You will never see your daughter again. You can find her body on the corner of Victoria and Gibson." At Mrs. Jordan's request, the caller repeated the information, then hung up. Within a half-hour, another call said, "On the corner of Gibson and Victoria, fifth row, you will find a white Caucasian body of a young girl in the orange grove." Id.

While police officers were at the Jordan home later that evening, a third call was received. The caller said, "You can find Sue's identification in a telephone booth at the Texaco station at Arlington and Indiana." Id. Officers were sent to the Texaco station, where they discovered two Arlington High School identification cards belonging to Susan and a library pouch from a book. Id. at 523.

Meanwhile, a police dog found Susan's body lying face down in the orange grove, with dirt piled up on both sides of her head. The body was nude below the waist except for socks, and Susan's bra was partially pulled out from under her blouse. Her jeans were located elsewhere in the grove. A shoelace, apparently from one of her shoes, was wrapped tightly around her neck. Homicide investigators found signs of a struggle and indications that the body had been dragged for some distance. Id. at 522-23.

About 9:30 p.m., another call was received at Susan's home, stating "In the tenth row, you'll find the body." The Jordans were able to record this call. Two acquaintances of Brown later identified the voice on the taped call as that of Brown. Id. at 523, 525.

Early the next morning, the police set up roadblocks on the streets near the grove and questioned passersby. Witnesses recalled seeing a black man approaching Susan on the bike trail, standing in the grove as she walked by, or following her. Witnesses also reported seeing a brown Trans Am in the vicinity on that date, which matched the description of Brown's car. Witnesses also described the man they had seen in the area as wearing jogging clothes, some particularly describing green running shorts and a green and white shirt. Id. at 523.

The investigation quickly focused on Brown. About a week after the murder, the authorities obtained a search warrant for Brown's residence. Inside the house, a telephone directory was turned back to the page containing the Jordans' listing. There were newspaper articles about Susan's death under Brown's bed, and two of her missing schoolbooks were found in the den. The library pouch found in the telephone booth had come from one of the books. Green running shorts and a green and white shirt were found in Brown's work locker, and undershorts found in the locker had semen stains. Id. at 523-24. At trial, three witnesses positively identified Brown as the man they saw near the grove on the day of Susan's death. Id. at 524.

Brown presented an alibi defense. His mother testified that Brown was at home with her on the morning of October 28, leaving the house for only about eight minutes to get milk, and then leaving for work at 8:14 a.m. Id. at 525.

The jury convicted Brown of first degree murder and of the special circumstance of murder in the course of rape. At the penalty phase, the prosecution presented evidence that Brown had previously raped a fourteen-year-old girl in her home as she prepared to leave for school. Id. at 525. The defense presented psychiatric and background evidence suggesting that Brown suffered severe emotional problems, including sexual maladjustment and dysfunction. Id. at 525. Brown's defense psychiatrist opined that Brown killed Susan out of shame for raping her, and that the phone calls indicated shame and a desire to be caught. The psychiatrist opined that Brown was not violent by nature, but was only a threat to women, and that he would not present a problem if sentenced to life in prison.

Several of Brown's family members testified on his behalf. Brown also took the stand, expressed remorse for the prior rape, and asked the jury for mercy. Id. at 525. After deliberating for less than three hours, the jury returned a death verdict.

On direct appeal, the California Supreme Court affirmed Brown's conviction, but reversed the penalty based on what it perceived as an improper jury instruction. Id. at 537-38. However, the United States Supreme Court granted certiorari and reversed the California Court, thus reinstating the death penalty. California v. Brown, 479 U.S. 538, 539-43, 107 S.Ct. 837, 93 L.Ed.2d 934 (1987). On remand, the California Supreme Court reversed again because the trial court had failed to make a proper record of its denial of the motion for modification of the death penalty. People v. Brown, 45 Cal.3d 1247, 1263-64, 248 Cal.Rptr. 817, 756 P.2d 204 (1988). The trial court then made a proper determination on the record, which was upheld by the California Supreme Court, and the United States Supreme Court denied Brown's petition for certiorari. People v. Brown, 6 Cal.4th 322, 24 Cal.Rptr.2d 710, 862 P.2d 710 (1993).

Brown filed his federal habeas petition in May 1996, but it contained many unexhausted claims. The district court stayed proceedings, and Brown filed a habeas petition with the California Supreme Court in November 1996, which was cursorily denied (on procedural grounds and on the merits) in an unpublished opinion on June 3, 1999. Brown then filed a second amended habeas petition in district court in August 1999. The district court held an evidentiary hearing on two of Brown's claims involving penalty phase ineffective assistance of counsel and then denied relief on all grounds.

The district court granted a COA on two ineffective assistance of counsel issues— Claim 20, subparts (B) and (C)—and denied Brown's motion to expand the certificate. In an order filed May 15, 2007, we expanded the COA to include Brown's Claim 20(A) (an additional claim of ineffective assistance) and Claim 38 (a claim that lethal injection violates the Eighth Amendment).

STANDARD OF REVIEW

The district court's dismissal of the petition for a writ of habeas corpus is reviewed de novo. Avila v. Galaza, 297 F.3d 911, 914 n. 1 (9th Cir.2002). The district court's findings of fact are reviewed for clear error. Allen v. Woodford, 395 F.3d 979, 992 (9th Cir.2005).

Because Brown's federal habeas petition was filed after April 24, 1996, his action is governed by the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Under AEDPA, we defer to the last reasoned judgment by the state courts and grant habeas relief only if the state decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or the decision "was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." 28 U.S.C. § 2254(d). To grant relief, we must determine that the state court decision was "`not only erroneous, but objectively unreasonable.'" Middleton v. McNeil, 541 U.S. 433, 436, 124 S.Ct. 1830, 158 L.Ed.2d 701 (2004) (quoting Yarborough v. Gentry, 540 U.S. 1, 5, 124 S.Ct. 1, 157 L.Ed.2d 1 (2003) (per curiam)).

When the state court decides a claim on the merits, but does not provide the reasoning for its decision, we undertake an independent review of the record before that state court to determine whether the state court decision was objectively unreasonable. See Reynoso v. Giurbino, 462 F.3d 1099, 1109 (9th Cir.2006); Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir.2000). This review "is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable." Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003).

The state court decision is reviewed under the clearly established law at the time of the state court decision. Stokes v. Schriro, 465 F.3d 397, 401-02 (9th Cir.2006). Clearly established federal law as determined by the Supreme Court includes only "`the holdings, as opposed to dicta, of [the Supreme] Court's decisions.'" Carey v. Musladin, ___ U.S. ___, 127 S.Ct. 649, 653, 166 L.Ed.2d 482 (2006) (quoting Williams v. Taylor, 529 U.S....