Caro v. Calderon

• Decision Date: 11 January 1999
• Docket Number: No. 96-99019,96-99019
• Citation: 165 F.3d 1223
• Parties: 99 Cal. Daily Op. Serv. 268 Fernando Eros CARO, Petitioner-Appellant, v. Arthur CALDERON, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1223

165 F.3d 1223

99 Cal. Daily Op. Serv. 268

Fernando Eros CARO, Petitioner-Appellant, v. Arthur CALDERON, Warden, Respondent-Appellee.

No. 96-99019.

United States Court of Appeals Ninth Circuit.

Argued and Submitted March 5, 1998.

Decided Oct. 27, 1998.

Amended Jan. 11, 1999.

Joseph C. Spero, Keith Evans-Orville, Coblentz, Patch, Duffy & Bass, LLP, San Francisco, California, for the petitioner-appellant.

Dane R. Gillette, Senior Assistant Attorney General, San Francisco, California, for the respondent-appellee.

Appeal from the United States District Court for the Northern District of California; James Ware, District Judge, Presiding. D.C. No. CV-93-04159-JW.

Before: PREGERSON, FERGUSON and KLEINFELD, Circuit Judges.

FERGUSON, Circuit Judge:

Fernando Caro appeals the District Court's dismissal of his writ of habeas corpus pursuant to 28 U.S.C. § 2254. ¹ In this opinion, we consider whether Caro was entitled to an evidentiary hearing on his claim that counsel's failure to investigate the combined effects of Caro's extraordinary exposure to neurotoxicants, neurological impairments, and personal background constituted ineffective assistance of counsel at the penalty phase trial. We conclude that Caro is entitled to an evidentiary hearing and remand to the district court for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

Caro was convicted on October 16, 1981, of two counts of first degree murder, the kidnapping of one of the victims, and two counts of assault with intent to commit murder. On December 10, 1981, a sentencing jury returned a verdict of death. On October 6 Caro is of Mexican-American and Yaqui Indian heritage. He was raised in a racially divided rural community in conditions of abject poverty. The oldest son of farm laborers, Caro spent most of his childhood living in a shack surrounded by livestock yards and agricultural fields. The house had no running water or indoor plumbing and, due to its proximity to the livestock yards, was filled with flies and other insects that "made the sky black." During the summer, Caro and his family joined the stream of migrant farm workers. The family slept in fields, open tents, or along the road, sometimes using empty crates as beds. Caro worked alongside the adults as soon as he was able to walk.

1988, the California Supreme Court set aside one of the special circumstance findings as duplicative, but otherwise affirmed the judgment. People v. Caro, 46 Cal.3d 1035, 251 Cal.Rptr. 757, 761 P.2d 680 (1988). Caro subsequently filed two writs of habeas corpus with the California Supreme Court. The court denied both writs. Caro then filed a writ of habeas corpus in the United States District Court for the Northern District of California. The District Court denied Caro's request for an evidentiary hearing, granted summary judgment for the State, and dismissed the petition.

Caro's role as the oldest son of a traditional family meant that his parents' expectations of him were higher than those for his siblings. Declarations from his mother, sister, and other relatives all indicate that Caro was the most severely beaten of his brothers and sisters because he was the oldest. Both parents beat Caro severely throughout his childhood, hitting him with closed fists, sticks, belts, tools, and boards, and kicking him with work boots.

Caro suffered severe head injuries as a child. His mother reports that he was born with a three inch lump on his head due to the use of forceps during his difficult delivery. At the age of three, Caro was struck by a car and fell back and hit his head. A water cooler fell on his head that year as well.

Caro also suffered from acute and chronic exposure to neurotoxic chemicals throughout his life, some of which have been documented to cause otherwise inexplicable aggressive behavior. Caro's family used water laden with pesticides both at home and in the fields for drinking, bathing, and cleaning. His family used insecticide on a daily basis to fight the insect infestation at home. At the age of one and a half, Caro drank a bottle of Clorox and went into convulsions, turning blue and foaming at the mouth, for four to six minutes. Throughout his childhood, Caro worked and played in fields covered with pesticides. One day, while playing on a tank of ammonia, Caro peered into the tank and lost consciousness from the fumes.

During high school, Caro worked as a "flagger"--someone who stands in the fields to indicate to the crop duster where to dump his load of pesticides. Caro was denied the protective clothing his supervisors wore as they watched him mix and load the chemicals prior to dumping. Because he had no access to a shower or time to change clothes before school, Caro would spend all day in pesticide-drenched clothes. The pungent smell of the pesticides earned him the nickname "Stinky" among his classmates.

As an adult, Caro worked for the two years prior to his arrest as a maintenance worker at a corporation that produced toxic pesticides. One of Caro's primary tasks was to clean the air ventilation system and the mixing and heating equipment. Workers were not given protective respiratory devices. Rather, they were tethered with a rope to a waist belt so they could be pulled out of the system when they lost consciousness. Workers also cleaned contaminated equipment, holding pieces of equipment in vats of solvents with their hands. Plastic protective gloves regularly tore during this work. Caro volunteered to break down five or six transformers containing polychlorinated byphenyls ("PCBs"), formerly banned from use. Caro also formed part of the plant's Emergency Response Team, responding to at least three accidents during his employment. During one of these accidents, the cloud of Parathion that was released burned the paint off the walls.

STANDARD OF REVIEW

The District Court's denial of an evidentiary hearing is reviewed for an abuse of

discretion. Swan v. Peterson, 6 F.3d 1373, 1384 (9th Cir.1993) (citing Greyson v. Kellam, 937 F.2d 1409, 1412 (9th Cir.1991)).

DISCUSSION

Caro is entitled ² to an evidentiary hearing if (1) he has alleged facts that, if proved, would entitle him to relief; and (2) the state court trier of fact has not, after a full and fair hearing, reliably found the relevant facts. See Turner v. Marshall, 63 F.3d 807, 815 (9th Cir.1995) (quoting Tinsley v. Borg, 895 F.2d 520, 530 (9th Cir.1990)); see also Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), rev'd on other grounds by Keeney v. Tamayo-Reyes, 504 U.S. 1, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992); Siripongs v. Calderon, 35 F.3d 1308, 1314 (9th Cir.1994).

In order to demonstrate that his counsel was ineffective, Caro must show that his counsel's performance was so deficient that it fell below an "objective standard of reasonableness." Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Effectiveness must be judged as of the time the legal services were rendered so as to minimize the distortions of hindsight. Bonin, 59 F.3d at 835. In addition, Caro must show that the deficient performance rendered the results of his trial unreliable or fundamentally unfair. See Strickland, 466 U.S. at 687, 104 S.Ct. 2052; see also Lockhart v. Fretwell, 506 U.S. 364, 369, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993).

Failure to investigate a defendant's organic brain damage or other mental impairments may constitute ineffective assistance of counsel. See, e.g., Hendricks v. Calderon, 70 F.3d 1032, 1043-44 (9th Cir.1995); Evans v. Lewis, 855 F.2d 631, 637-38 (9th Cir.1988). In addition, this Court has recognized that the failure to present evidence necessary to bridge a cultural gap may constitute ineffective assistance of counsel. Siripongs, 35 F.3d at 1316. Counsel have a duty to make a reasonable investigation such that they are able to make informed decisions about how best to represent their clients. Strickland, 466 U.S. at 691, 104 S.Ct. 2052; Sanders v. Ratelle, 21 F.3d 1446, 1456 (9th Cir.1994). "Thus, we have found counsel ineffective where he neither conducted a reasonable investigation nor made a showing of strategic reasons for failing to do so." Sanders, 21 F.3d at 1456.

Caro has presented several declarations from experts stating that no evaluation of his mental capacities is complete without information concerning Caro's exposure to neurotoxicants as well as his personal background. Caro was examined by four experts prior to trial, including one medical doctor, a psychologist, and a psychiatrist. None of the experts indicated that Caro suffered from a mental impairment severe enough to constitute legal insanity or diminished capacity. Nevertheless, the medical doctor who examined Caro prior to trial has since declared that, had he known of Caro's extraordinary exposure to pesticides, the severe physical, emotional, and psychological abuse he suffered as a child, and his social and cultural history, he would have testified that Caro had a diminished mental capacity. In addition, the competence of the psychiatrist is subject to question, since he prompted a suicide attempt by telling Caro that he should have the right to take his own life. Finally, none of the experts were neurologists or toxicologists and none conducted the neurological testing needed to evaluate the effects that the pesticides and chemicals had on Caro's brain.

Counsel have an obligation to conduct an investigation which will allow a determination of what sort of experts to consult. Once that determination has been made, counsel must present those experts with information relevant to the conclusion of the expert. Counsel in this case was aware of Caro's extraordinary acute and chronic exposure to neurotoxicants, and yet he failed to consult either a neurologist or a toxicologist, experts on the effects of the chemical poisoning. In addition, he failed to provide those experts who did examine Caro with the information...