Cooper v. Calderon

• Decision Date: 20 January 2000
• Docket Number: RESPONDENT-APPELLEE,No. 97-99030,PETITIONER-APPELLANT,97-99030
• Citation: 255 F.3d 1104
• Parties: (9th Cir. 2001) KEVIN COOPER,, v. ARTHUR CALDERON, WARDEN OF CALIFORNIA STATE PRISON AT SAN QUENTIN,
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1104

255 F.3d 1104 (9th Cir. 2001) KEVIN COOPER, PETITIONER-APPELLANT,
v.
ARTHUR CALDERON, WARDEN OF CALIFORNIA STATE PRISON AT SAN QUENTIN, RESPONDENT-APPELLEE. No. 97-99030 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted January 20, 2000--Pasadena, California
Filed July 9, 2001

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Copyrighted Material Omitted

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Robert B. Amidon, Burbank, California, David L. Bernstein, Studio City, California, and William M. McGuigan, Chula Vista, California, for the petitioner-appellant.

Frederick R. Millar, Jr., Deputy Attorney General, San Diego, California, for the respondent-appellee.Cald

Appeal from the United States District Court for the Southern District of California Marilyn L. Huff, District Judge, Presiding D.C. No. CV-92-00427 H

Before: James R. Browning, Pamela Ann Rymer, and Ronald M. Gould,¹ Circuit Judges.

Opinion by Judge Rymer; Concurrence by Judge Gould; Dissent by Judge Browning

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OPINION

RYMER, Circuit Judge:

California state prisoner Kevin Cooper appeals the district court's denial of his 28 U.S.C. §§ 2254 habeas petition, in which he challenged his conviction for the first degree murders of Douglas Ryen, Jessica Ryen, Peggy Ann Ryen and Christopher Hughes, and attempted murder in the first degree of Joshua Ryen. Following his conviction, Cooper was sentenced to death.

Because Cooper filed his habeas petition before the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), AEDPA does not apply to the merits of the appeal. However, the Supreme Court held in Slack v. McDaniel, 529 U.S. 473 (2000), that AEDPA does govern any habeas appeal commenced after its effective date, April 24, 1996, without regard to when the petition was filed. For this reason, Cooper needs a certificate of appealability (COA) rather than a certificate of probable cause (CPC) for this court to have jurisdiction. As Cooper could not have known that a COA rather than a CPC was required, we treat his "notice of appeal as a request for a COA on the issues raised in the briefs, and we grant a COA on those issues as to which the petitioner has made the requisite `substantial showing of the denial of a constitutional right.' " Morris v. Woodford , 229 F.3d 775, 779 (9th Cir. 2000) (quoting Schell v. Witek, 218 F.3d 1017, 1021 n.4 (9th Cir. 2000)). We conclude that he has made such a showing and so grant a COA on the issues raised in Cooper's opening brief.

On the merits, we affirm.²

I.

On June 2, 1983, Cooper escaped from the California Institute for Men (CIM), a state prison. He admitted that he stayed in a vacant house (the Lease house) next door to the Ryens' residence on Thursday night, all day Friday, and Friday night; he hid in the bathroom when one of the owners of the Lease house stopped by on Saturday morning. The murders happened Saturday night. Using a hatchet or axe and a knife, he hacked to death Douglas and Peggy Ryen (37 separate wounds for Douglas, 32 for Peggy), their ten-year-olddaughter Jessica (46 wounds), and eleven-year-old Christopher Hughes (26 wounds), who was spending the night at the Ryens' home. Cooper also inflicted chopping wounds to the head, and stabbing wounds to the throat, of eight-year-old Joshua Ryen, who survived.

At the Lease house, a blood-stained khaki green button identical to the buttons on field jackets issued at the state prison from which Cooper escaped was found on the rug. Tests revealed the presence of blood in the shower and bathroom sink of the Lease home, and hair found in the bathroom sink was consistent with that of Jessica and Doug Ryen. A bloodstained rope in the Lease house bedroom was similar to a bloodstained rope found on the Ryens' driveway. A hatchet covered with dried blood and human hair that was found near the Ryens' home was missing from the Lease house, and the sheath for the hatchet was found in the bedroom where Cooper stayed. Buck knives and at least one ice pick were also missing from the Lease home, though a strap from one buck knife was found on the floor.

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Blood found in the Ryens' home was the victims', except for one drop on a wall near where the murders occurred. It belonged to an African-American male, which Cooper is. Two partial shoe prints and one nearly complete shoe print found in the Ryens' house were consistent both with Cooper's size and the Pro Ked shoes issued at CIM.

The Ryens' vehicle, which had been parked outside their house, was missing when the bodies were discovered but was later found in Long Beach. A hand-rolled cigarette butt and "Role-Rite" tobacco that is provided to inmates at CIM (but not sold at retail) was in the car. Similar loose leaf tobacco was found in the bedroom of the Lease house where Cooper had stayed. A witness testified that Cooper smoked handrolled cigarettes using Role-Rite tobacco. A hair fragment discovered in the car was consistent with Cooper's pubic hair and a spot of blood found in the car could have come from one of the victims but not from Cooper.

Cooper was charged with four counts of first degree murder and one count of attempted murder in the first degree, and with escape from state prison. He pled guilty to escaping from state prison. On February 19, 1985, a jury convicted Cooper of the first degree murders of Franklyn Douglas Ryen, Jessica Ryen, Peggy Ann Ryen and Christopher Hughes, and of attempted murder in the first degree of Joshua Ryen. The jury also found true the special circumstance of multiple murders, as was the allegation that Cooper intentionally inflicted great bodily injury on Joshua Ryen. The jury then determined the penalty as death on the four murder counts. On May 6, 1991, the California Supreme Court affirmed the convictions and sentence. See People v. Cooper, 53 Cal.3d 771, 281 Cal. Rptr. 90 (1991). The United States Supreme Court denied a petition for writ of certiorari on December 16, 1991. Cooper v. California, 502 U.S. 1016 (1991).

Cooper filed his first federal petition for writ of habeas corpus on August 11, 1994, and an amended petition on April 12, 1996. Meanwhile, he returned to state court to exhaust a number of claims. On February 19, 1996, the California Supreme Court denied Cooper's state habeas petition. Cooper then filed a supplemental petition in district court on June 20, 1997. Following an evidentiary hearing, the petition was denied on August 25, 1997.³

Cooper timely appeals.

II.

Cooper argues that he was denied effective assistance of counsel when his trial attorney decided to forego lesser included offense instructions of second degree murder. He contends that this decision was based on his lawyer's erroneous belief that no first degree murder convictions were required to reach the penalty phase. A petitioner seeking habeas relief based on the ineffective assistance of counsel must show (1) that the counsel's representation fell below an objective standard of reasonableness; and (2) that there is a reasonable probability (i.e., a probability sufficient to undermine confidence in the outcome) that but for the counsel's unprofessional errors the result of the proceeding would have been different. See Strickland v. Washington, 466 U.S. 668, 688, 694 (1984).

During a conference on jury instructions, Cooper's trial counsel, David Negus,

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objected to the court's suggestion that it provide instructions on second degree murder. As he explained, "It's first degree or it is nothing. " Negus informed the court that "Mr. Cooper and I both agreed that we don't want a second degree instruction. Correct?" and Cooper responded, "That's true." Negus asserted that he and Cooper realized that they were foreclosing the possibility of a potentially lesser conviction, but nevertheless did not want the jury to compromise on second degree murder. In any event, Negus said that he did not believe that the evidence supported a finding of second degree murder. Thereafter, the trial court requested a waiver from the defendant personally, which was obtained.

Cooper argues that Negus either misunderstood the law or deliberately misled his client when he caused Cooper to waive his right to second degree instructions by informing him that two second degree murder convictions resulted in a penalty phase. The district court, after a thorough evidentiary hearing, found that Negus's decision to forego second degree murder instructions was not based on any misinterpretation of the law, but was rather based upon counsel's sound and reasonable decision to avoid a compromise verdict and attempt to obtain a hung jury. However, because Cooper must prove both deficient performance and prejudice, we "need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies . . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." Strickland, 466 U.S. at 697.

Cooper must "affirmatively prove prejudice." Id. at 693. This requires showing more than the possibility that he was prejudiced by counsel's errors; he must demonstrate that the errors actually prejudiced him. See id. Whether an error actually prejudiced a defendant is weighed against the"totality of the evidence before the judge or jury." Id. at 695. "[A] verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support." Id. at 696.

Here, even assuming error, there is no possibility that Cooper was actually prejudiced. As the California Supreme Court observed, and the district court also held:

If the jury found defendant was the killer, it necessarily would find he took the murder weapons, the hatchet and knife, with him from the Lease house. This showed planning prior to the killing. He has an obvious motive both for stealing the Ryen car -to get transportation away from the area...