Demetrulias v. Davis

• Citation: 14 F.4th 898
• Decision Date: 23 September 2021
• Docket Number: No. 14-99000,14-99000
• Parties: Gregory Spiros DEMETRULIAS, Petitioner-Appellant, v. Ronald DAVIS, Warden, California State Prison at San Quentin, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

14 F.4th 898

Gregory Spiros DEMETRULIAS, Petitioner-Appellant,

v.Ronald DAVIS, Warden, California State Prison at San Quentin, Respondent-Appellee.

No. 14-99000

United States Court of Appeals, Ninth Circuit.

Argued and Submitted January 26, 2021 Pasadena, California

Filed September 23, 2021

Lauren Collins (argued) and Michael D. Weinstein, Deputy Federal Public Defenders; Cuahtemoc Ortega, Federal Public Defender; Office of the Federal Public Defender, Los Angeles, California; for Petitioner-Appellant.

Teresa Torreblanca (argued), Deputy Attorney General; Holly D. Wilkens, Supervising Deputy Attorney General; Julie L. Garland, Senior Assistant Attorney General; Gerald A. Engler, Chief Assistant Attorney General; Rob Bonta, Attorney General; Office of the Attorney General, San Diego, California; for Respondent-Appellee.

Before: M. Margaret McKeown, Kim McLane Wardlaw, and Ronald M. Gould, Circuit Judges.

WARDLAW, Circuit Judge:

In 1995, Gregory Spiros Demetrulias was sentenced to death for the fatal stabbing of Robert Miller. At trial, Demetrulias admitted to killing Miller, but claimed that he did so in a struggle initiated by Miller when Demetrulias visited his home to collect a $40 debt that Miller owed him. The prosecution maintained that Demetrulias stabbed Miller in the commission of a robbery. The jury convicted Demetrulias of first-degree murder, found that Demetrulias killed Miller in the course of a robbery, and imposed the death penalty.

This appeal arises from the district court's denial of Demetrulias's federal petition for a writ of habeas corpus, which is governed by the Antiterrorism and Effective Death Penalty Act of 1996. We review six certified issues and affirm the district court's denial of habeas relief.

I.

A.

In January 1989, 35-year-old Gregory Demetrulias was living with his parents in Riverside, California. On the evening of January 10, Demetrulias drank at least a case of beer and took a handful of prescription medications. Staggering and slurring his words, Demetrulias was in no condition to go out—but he was adamant about leaving the house. Following an argument with his parents, Demetrulias's mother agreed to drive him to the Round Up Bar. She gave him $30 or $40 that she had been holding for him and dropped him off at the bar.

Demetrulias had regularly frequented the bar over the preceding month or so, as had Robert Miller. According to Demetrulias, he and Miller met while drinking at the Round Up Bar in December 1988 and had spoken a few times after that. About January 6, 1989, Demetrulias lent Miller $40, which Miller promised to repay at the bar on the evening of January 10.

Upon arriving at the Round Up Bar that evening, Demetrulias ordered a beer, drank half of it, and angrily slammed it down. The bartender asked him to leave. Demetrulias finished his beer and stated as he left the bar that he was going to get another at the adjacent Stop-and-Go convenience store. Shortly thereafter, a bar patron observed Demetrulias pacing between the adjoining parking lots as he drank from a can.

At roughly 9:30 P.M., Demetrulias left the parking lot. He arrived at a nearby boarding house where Miller lived, the Mar Mac Manor, at around 10:00 P.M. Miller's fellow Mar Mac Manor second-floor resident, Robert Hanshaw, awoke to the sound of someone running up the stairs. Hanshaw then heard a voice loudly demand, "Give me your wallet." Shortly thereafter, Hanshaw heard steps descending the stairs. Miller then came out of his room, announcing: "He stabbed me in the heart. He's killed me."

Eric Carson, a first-floor resident of the boarding house, also witnessed the incident. Between 9:30 and 10:00 P.M., he overheard banging and stomping, then someone say in an aggressive voice: "Give me your money. Give me your wallet." Carson went out into the first-floor hallway, where he was joined by the building manager, Herb Hamilton. After Hamilton yelled something, Carson saw Demetrulias, who appeared to have something in his hand, rush down the stairs and leave through the front door. Miller then staggered down the stairs, stated that he had been stabbed in the heart, and collapsed before Hamilton and Carson.

Demetrulias fled to the home of Clarence Wissel, an 82-year-old man with whom his father had done business. Wissel opened the door with a gun in his hand. When Wissel raised the gun, Demetrulias pulled out a pocketknife and stabbed Wissel three times. Wissel then went to another room to grab the telephone, but Demetrulias hit him with the phone and disabled the gun by removing the cylinder, then tied Wissel up with the phone cord and immobilized him with a toppled dresser. Demetrulias then ransacked the house. He drank roughly eight beers from the refrigerator, took a handful of Valium, and collected cash and other items.

Authorities determined that Miller had died of a seven-inch-deep stab wound to his chest. He had also been stabbed in the face, back, and upper arm. All the wounds were inflicted with a single bevel knife. Officers found a knife blade matching this description, almost eight inches long and covered in blood, directly outside of Miller's room. A drawer containing knives and other implements was partially open in the first-floor kitchen. Miller's wallet was found in a fanny pack on his dresser. The wallet was empty, but $34.70 in cash was recovered from Miller's pocket.

At roughly 4:30 A.M., an investigating officer encountered Demetrulias walking on a street near the Mar Mac Manor, appearing intoxicated. The officer identified Demetrulias as resembling a composite sketch based on Carson's depiction of the assailant. When the officer approached, Demetrulias was evasive. The officer detained and searched him, finding $1,274 in cash in his pockets, two knives, numerous coins, four .38-caliber cartridges, a wallet, and a drug prescription bottle that bore Wissel's name. The officer also noticed bloodstains on Demetrulias's clothing. A blood sample taken at 10:15 A.M. that morning revealed a blood-alcohol level of .04 (suggesting a much higher level hours earlier), a therapeutic-range level of diazepam

(Valium ), and an unknown amount of Lorazepam (another sedative).

After arresting Demetrulias, police went to Wissel's house and found that it had been ransacked. Wissel's belongings were strewn about the doorway, driveway, and across the street. Officers found Wissel in a bedroom beneath a heavy dresser, bound by a telephone cord, with dried blood on his face. In the same room, police found a wallet with Demetrulias's identification and a revolver with the cylinder

removed. Beer bottles and a knife were in the kitchen sink, and another knife was on the washing machine. Wissel's dentures were found in a toilet. Wissel had suffered stab wounds to his neck, elbow, and chest, as well as brain injuries, and was comatose when he arrived at the hospital.

In a field halfway between the Mar Mac Manor and Wissel's house, officers found prints matching the shoes that Demetrulias was wearing when he was arrested. The same shoe prints were found at and around Wissel's home. A woman who lived by the field had heard her neighbor's dogs bark loudly around 10:00 P.M., which suggested to her that someone was outside.

Demetrulias was charged with the first-degree murder of Miller.¹ Prosecutors sought the death penalty based on the special circumstance of first-degree murder arising out of robbery or attempted robbery.

B.

Initially, Demetrulias was represented by the Riverside County Public Defender's Office. In late 1991, attorney Karla Sandrin replaced the office, and Peter Scalisi joined her in early 1993. Scalisi assumed primary responsibility for the guilt portion of the trial, and Sandrin focused on the penalty phase.

Trial began in 1995. During its case-in-chief, the prosecution briefly presented evidence regarding Miller's and Wissel's non-threatening natures. Defense counsel objected on the bases of relevance, speculation, and foundation, all of which were overruled. Several weeks later, defense counsel moved to strike the testimony, this time arguing that the testimony was impermissible victim character evidence. The court denied the motion.

Demetrulias testified at his trial, advancing a theory of self-defense. By his own account, he entered the Mar Mac Manor through the front door and went up the stairs to Miller's room. Miller's door was open, and Miller was sitting watching television. From the doorway, Demetrulias asked Miller why he had not been at the Round Up Bar and whether he had Demetrulias's money. Miller replied that he was broke and that he did not know when he would have the money. Demetrulias entered the threshold and an argument ensued. Miller reached down, picked something up, then charged at Demetrulias with a knife in hand. Demetrulias wrestled the knife away from Miller and stabbed him in the face, but Miller came at him again with his fists. Demetrulias then stabbed Miller in the side of his chest. Miller kept coming, and Demetrulias stabbed him in his back and the back of his arm while pushing him off. Demetrulias fell in the struggle, and the knife blade broke off.

Sensing that Miller "had had enough," Demetrulias testified that he left without taking anything from Miller's pockets. Still holding the handle of the broken knife, Demetrulias descended the stairs. When he saw Carson at the bottom, he explained, "We got into it, he attacked me." Demetrulias then fled the Mar Mac Manor in search of a telephone to call his mother.

After the close of the evidence, defense counsel requested two jury instructions relevant to this appeal. Throughout trial, Demetrulias's sole defense to the special circumstance robbery charge was that he had gone to the Mar Mac Manor to collect the $40 that Miller owed him. Consistent with this theory, he requested that the jury be instructed that "[a] belief in the right to reclaim one's property negates the specific intent necessary to constitute robbery. If such specific...