Clark v. Chappell, 090519 FED9, 14-99005

Docket Nº:14-99005
Opinion Judge:PER CURIAM.
Party Name:Richard Dean Clark, Petitioner-Appellant, v. Kevin Chappell, Warden, Respondent-Appellee.
Attorney:John R. Grele (argued), San Francisco, California, for Petitioner-Appellant. Alice B. Lustre (argued), Deputy Attorney General; Glenn R. Pruden, Supervising Deputy Attorney General; Jeffrey M. Laurence, Senior Assistant Attorney General; Xavier Becerra, Attorney General; Office of the Attorney Ge...
Judge Panel:Before: Consuelo M. Callahan, Sandra S. Ikuta, and John B. Owens, Circuit Judges.
Case Date:September 05, 2019
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Richard Dean Clark, Petitioner-Appellant,

v.

Kevin Chappell, Warden, Respondent-Appellee.

No. 14-99005

United States Court of Appeals, Ninth Circuit

September 5, 2019

Argued and Submitted April 16, 2019 Pasadena, California

Appeal from the United States District Court for the Northern District of California William Alsup, District Judge, Presiding D.C. No. 3:97-cv-20618-WHA

John R. Grele (argued), San Francisco, California, for Petitioner-Appellant.

Alice B. Lustre (argued), Deputy Attorney General; Glenn R. Pruden, Supervising Deputy Attorney General; Jeffrey M. Laurence, Senior Assistant Attorney General; Xavier Becerra, Attorney General; Office of the Attorney General, San Francisco, California; for Respondent-Appellee.

Before: Consuelo M. Callahan, Sandra S. Ikuta, and John B. Owens, Circuit Judges.

SUMMARY[*]

Habeas Corpus/Death Penalty

The panel affirmed in part and vacated in part the district court's denial of Richard Dean Clark's habeas corpus petition challenging his California conviction and capital sentence for the first-degree murder and rape of a 15-year-old, and remanded to the district court for reconsideration of one issue in light of Godoy v. Spearman, 861 F.3d 956 (9th Cir. 2017) (en banc).

Because the habeas petition was filed before April 24, 1996, the panel applied the standards in effect prior to the implementation of the Antiterrorism and Effective Death Penalty Act of 1996.

The panel held that Clark's five certified ineffective-assistance-of-counsel claims are unavailing because (1) Clark did not show that trial counsel's performance fell below an objective reasonableness standard at the time of trial or (2) in the few instances in which counsel's conduct was deficient, Clark has not shown that there is a reasonable probability that the outcome would have been different. In light of Godoy, the panel remanded for further proceedings on Clark's certified claim that his rights to due process and an impartial jury were violated when a juror communicated with his minister.

The panel rejected the state's argument that three of Clark's ten uncertified claims are procedurally barred from federal review, and granted a certificate of appealability on six of the uncertified claims. Affirming the district court's denial of habeas relief on two claims, the panel concluded that Clark did not establish any actual conflict of interest that adversely affected his representation. Affirming the district court's denial of Clark's claim that trial counsel was ineffective for failing to present life history evidence at the penalty phase, the panel concluded that trial counsel's presentation of life history evidence was not deficient. Affirming the district court's denial of Clark's claim that trial counsel was ineffective for failing to rebut a jailhouse report, the panel concluded that counsel's performance was not deficient. Affirming the district court's denial of Clark's claim that he was denied his Sixth Amendment right to be present for critical stages of the proceedings, the panel concluded that Clark did not explain how his presence at two meetings regarding possible conflicts of interest with counsel had a reasonably "substantial relationship" to his ability to defend himself. Affirming the district court's denial of Clark's claim that habeas relief is warranted under Brady v. Maryland, 373 U.S. 83 (1963), because the prosecution failed to disclose two pieces of exculpatory evidence, the panel concluded that there is not a reasonable probability that the result of the proceeding would have been different if the evidence had been disclosed to the defense. The panel affirmed the district court's denial of relief on Clark's claim that cumulative errors denied him a fair trial. The panel denied a COA on the remaining uncertified claims.

The panel affirmed the district court's denial of evidentiary hearings for all claims except the juror misconduct claim as to which the district court will determine on remand whether an evidentiary hearing is warranted.

OPINION

PER CURIAM.

California state prisoner Richard Dean Clark appeals from the district court's denial of his 28 U.S.C. § 2254 habeas corpus petition challenging his conviction and capital sentence for the first-degree murder and rape of fifteen-year-old Rosie Grover in 1985.

On appeal, Clark raises sixteen claims, of which six were certified: (1) ineffective assistance of counsel for failing to advise Clark to accept a plea offer; (2) violation of Clark's rights to due process and an impartial jury by juror misconduct; (3) ineffective assistance of counsel for calling Dr. Mayland to testify at the pre-trial suppression hearing; (4) ineffective assistance of counsel in preparing and presenting expert testimony; (5) ineffective assistance of counsel for failing to investigate and present evidence of Clark's fetal alcohol exposure, traumatic birth, and the ensuing effects from both; and (6) ineffective assistance of counsel for failure to argue that Dean "Dino" Stevens was an alternative suspect or co-participant and prosecutorial misconduct in failing to disclose information about Dino. Clark also raises ten uncertified claims, six of which we grant a certificate of appealability ("COA") and deny on the merits and three of which fail to satisfy the COA standard.

Because Clark's federal habeas petition was filed before April 24, 1996, the habeas standards in effect prior to the implementation of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") apply. Under pre-AEDPA standards, both questions of law and mixed questions of law and fact are subject to de novo review, which means that a federal habeas court owes no deference to a state court's resolution of such legal questions (in contrast with post-AEDPA standards). See Williams v. Taylor, 529 U.S. 362, 400 (2000); see also Robinson v. Schriro, 595 F.3d 1086, 1099 (9th Cir. 2010). But the state court's factual findings are entitled to a presumption of correctness unless one of the exceptions under 28 U.S.C. § 2254(d) (1991) is met.

Clark's numerous ineffective assistance of counsel claims, governed by Strickland v. Washington, 466 U.S. 668 (1984), are unavailing because Clark does not show that trial counsel's performance fell below an objective reasonableness standard at the time of the trial in 1987. Furthermore, for the few instances where counsel's conduct was deficient, Clark has not shown that there is a reasonable probability that the outcome would have been different. His efforts to show prejudice are undercut by the extensive evidence presented at trial, including his two detailed confessions and the physical evidence confirming his involvement in the crimes. The post-conviction mitigating evidence Clark marshals to support his argument that the penalty phase would have been different is cumulative of the mitigating evidence presented at the guilt and penalty phases of trial. We similarly find unpersuasive Clark's conflict of interest claim under Mickens v. Taylor, 535 U.S. 162, 171 (2002), based on his first attorney's election as District Attorney and his subsequent attorney's representation of witnesses.

On one issue, juror misconduct, we remand to the district court to decide Clark's claim in light of our recent decision in Godoy v. Spearman, 861 F.3d 956 (9th Cir. 2017) (en banc).

We otherwise deny habeas relief. We also affirm the district court's denial of evidentiary hearings for all claims (with the exception of the juror misconduct issue), concluding Clark has not shown that he would be entitled to relief on his proffered facts.

I. FACTUAL BACKGROUND

A. The Crimes

Around 4:00 a.m. on July 19, 1985, fifteen-year-old Rosie Grover arrived at the Greyhound bus depot in Ukiah, California. After unsuccessfully attempting to obtain a ride, she started walking to her mother's house. Several hours later, her body was found in a nearby creek-bed. Grover had been raped, stabbed with a sharpened screwdriver, and bludgeoned in the head and neck with two concrete blocks.

At the time of the crimes, Defendant-Appellant Richard Dean Clark, then twenty-one years old, was living with and caring for his paraplegic friend, David Smith, in Ukiah. On the day before the crimes, Clark and Smith spent the afternoon drinking beer, ingesting cocaine, and smoking marijuana. Clark drank three or four beers at the local bar. Clark and Smith both ingested cocaine at the house of Smith's stepsister, Michelle Stevens. Although Smith had seen Clark use methamphetamine in the past, he did not see Clark use methamphetamine that day. Clark smoked between two and five marijuana cigarettes.

Later that evening, a fight broke out between Clark and Michelle's boyfriend, Matt Williams. According to Williams, Clark "looked like he was on something" and "got kind of violent, shadow boxing around the house and throwing punches." Around 10:00 p.m., Clark announced that he "was going to beat somebody up and rob them" and then he left with Dino Stevens-Michelle's stepbrother.

Clark and Dino played pool at Munchie's, a local pool hall, for approximately 30 to 40 minutes. After they left the pool hall, they went to the home of Robyn Boyd, who lived near the Ukiah bus depot. Clark and Dino left Boyd's house around 12:30 a.m. Upon leaving, the men went their separate ways.

Little evidence, other than Clark's statements to the police, establish Clark's location and movements from the time that he left Boyd's house until he entered a restaurant later that morning.

On July 19 at about 6:15 a.m., Clark walked into Ron-Dee-Voo Restaurant near the Greyhound bus depot with a partially empty wine cooler bottle in his hand. He told Karen Mertle, a waitress, that he found a girl's...

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