Dyer v. Calderon

• Decision Date: 09 October 1997
• Docket Number: No. 95-99002,95-99002
• Parties: Alfred R. DYER, Petitioner-Appellant, v. Arthur CALDERON, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 720

122 F.3d 720

Alfred R. DYER, Petitioner-Appellant, v. Arthur CALDERON, Warden, Respondent-Appellee.

No. 95-99002.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Dec. 14, 1995.

Decided May 5, 1997.

As Amended Aug. 19, 1997.

Order Granting Rehearing Oct. 9, 1997.

Jon B. Streeter, Orrick, Herrington & Sutcliffe, San Francisco, CA, for petitioner-appellant.

Dane R. Gillette, Deputy Attorney General, San Francisco, CA, for respondent-appellee.

Appeal from the United States District Court for the Northern District of California, Vaughn R. Walker, District Judge, Presiding. D.C. No. CV-89-03454-VRW.

Before: WALLACE, FLETCHER, and BRUNETTI, Circuit Judges.

WALLACE, Circuit Judge.

Dyer, a California state prisoner under sentence of death, appeals from the district court's denial of his petition for writ of habeas corpus relief under 28 U.S.C. § 2254. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. §§ 1291 and 2253. We affirm.

I

On November 8, 1980, Dyer (armed with a .38 caliber handgun), Michael Jackson (Dyer's stepbrother), and Cleveland Ario (armed with a .45 caliber semiautomatic pistol) drove to the home of their friend, Belinda Murray. She lived in a two-level apartment in Oakland, California, along with her brother Floyd, her friend Nora Fluker, and Fluker's four children. Dyer, Jackson, and Ario brought cocaine and a bottle of wine, which they drank.

Some time later, Belinda Murray's friend, Bennie Warren, arrived. Warren had never met Dyer before, but found him to be "stable-minded," "intelligent," and entirely in control of himself. Later, Belinda Murray, Dyer, Jackson, and Ario went upstairs to Belinda's bedroom. Warren was told to stay downstairs. Once upstairs, Ario injected Belinda Murray, Dyer, and himself with a "speedball"--a mixture of heroin and cocaine. Jackson and Fluker also used the drugs. Dyer appeared to have received a small dose, which had no apparent effect on him.

Dyer, Jackson, and Ario then left Belinda Murray's apartment. Belinda and Warren also left, returning later with gum, cigarettes, and a bottle of wine. At that time, Floyd Murray was upstairs with Fluker's sleeping children. Dyer, Jackson, and Ario returned approximately midnight. The three went upstairs with Belinda Murray and Warren to Belinda's bedroom, where Dyer, Jackson, and Ario again injected themselves with drugs. Dyer then laid down on Belinda's bed, covered his eyes with his arm, and rested. Ario gave his .45 caliber gun to Belinda Murray, and she placed it in the closet. Warren left the apartment soon thereafter, and Jackson and Ario followed.

Dyer arose after about five minutes and appeared startled. He noticed that his rings were missing and asked Belinda Murray if his stepbrother Jackson had removed them from his fingers. Belinda told Dyer that she did not know, but said that Warren had been nearby when he fell asleep. Dyer concluded that Warren must have taken his rings. Dyer told Belinda to give him Ario's gun, which he stuck inside his pants along with his own .38 caliber pistol. Dyer then asked Belinda to accompany him through the housing project in search of Warren so he could locate his missing rings.

Dyer conversed with Belinda Murray as they walked. He appeared angry, but not intoxicated. He told her that he was going to kill Warren if he found him that evening and if not, he was going to "whip his ass" once he did.

When Belinda Murray and Dyer returned, Belinda went upstairs while Dyer sat downstairs on the couch. Belinda heard a knock on the door and, looking out her bathroom window, saw Warren standing at the front door. Belinda rushed downstairs and found Dyer pistol-whipping Warren on the head with both guns. Warren's face was bloody and he was almost unconscious. Dyer demanded that Warren return his rings. Warren denied having them and Dyer told him, "You better pray my brother has my rings." At all times during the beating, Dyer appeared angered, but in control of himself.

Within minutes, Jackson and Ario arrived. Jackson asked Dyer what was the matter. Dyer, with a gun in each hand, pushed Jackson away. Jackson, upset by Dyer's act, left the apartment. Belinda Murray and Fluker followed Jackson outside and quieted him down. When Jackson came back inside, Dyer gave him one of the guns and Jackson immediately became violent. He pushed both Belinda Murray and Fluker and told them not to move. Upon Dyer's command, Ario searched Warren, but did not find Dyer's rings. During the search, Dyer kept his gun pointed at Warren and told him he was "a dead man."

Upon hearing Dyer's threat, Ario told Dyer that if he killed one of them he would have to kill the others as well. Dyer replied, "Man, I'm not killing no babies." Ario then went upstairs to get Floyd Murray. Jackson marched at gunpoint the four captives--Fluker, Warren, Belinda, and Floyd Murray--into the back seat of a car. Dyer joined Jackson and Ario in the front seat.

The four hostages urged whomever took the rings to return them. No one, however, admitted to having the rings. Jackson finally turned around, gun in hand, and ordered them to "shut up." Ario said that they should "kill that bitch first," referring to Belinda Murray. During the ride, Floyd Murray asked Dyer several times, "Why do you want to take me out?" Dyer told him to "shut up" and stuck his gun in Floyd's face.

After about ten minutes, the car stopped and Dyer said, "Get out." Dyer pointed the .45 caliber weapon at the four hostages and instructed them to walk straight ahead. Jackson ordered them to lie face down on the ground. Before lying down, Belinda Murray saw that Dyer still had a gun.

After she lay down, Belinda looked up and could see "the fire coming" as the first shot was fired. She threw her arms up over her head and passed out.

Although ordered to lie face down, Floyd Murray remained on his knees. Warren (who had been a member of the National Rifle Association since age 13 and was very familiar with guns) then heard three shots from the .38 caliber revolver come from his left, where Belinda Murray was lying. He then heard scuffling noises, as if someone was being beaten. Someone said, "This bitch ain't dead yet." Warren heard a few more shots and heard someone say, "If she's not dead now, she'll be dead by morning." Warren thought the additional shots also came from the .38 revolver.

Warren next heard shots from the .45 caliber gun, followed by more scuffling. He heard someone walk toward him, looked up, and saw Dyer holding the .45 about a foot away from Fluker. Dyer fired three shots; each time a bullet entered Fluker's body, Warren "could feel her fluttering and jumping."

Dyer then stepped in front of Warren, who got up on his knees. He pointed the gun at Warren's head and fired. Warren flipped over backwards and, before losing consciousness, heard someone say, "If they're not dead now, they'll be dead by morning," and someone else say, "check their pulse."

When Belinda Murray regained consciousness, she felt someone taking her pulse and heard him say, "The bitch is not dead." A gun was placed against her head and Belinda heard three clicks, but the gun did not fire. She "played dead" until Jackson, Dyer, and Ario left. None of them appeared intoxicated at any time during the evening.

Eventually, Belinda Murray managed to get up, locate a phone, and contact an ambulance and the police. Warren also managed to flag down a police car and was taken to a hospital.

An autopsy of Floyd Murray's body revealed four gunshot wounds to the head and shoulder, at least two of which were caused by .38 caliber bullets. An autopsy of Fluker's body disclosed three gunshot wounds to the head and shoulder blade, at least one of which was from a .45 caliber gun and at least one from a .38 caliber gun.

A.

Dyer's theory of defense was diminished capacity. Dyer did not deny or attempt to justify his actions. Instead, he claimed that his own mental faculties were impaired by his consumption of drugs and alcohol. Dyer testified that he snorted cocaine and drank wine and brandy with Jackson and Ario before they went to Belinda Murray's apartment. At the house, Ario injected him with a combination of cocaine and heroin.

Dyer testified that when he left Belinda's apartment with Jackson and Ario, they went to the home of Delphine "Dee" Dismuke, where Dyer smoked marijuana, snorted cocaine, and drank gin. According to Dyer, the three men then returned to Belinda's house where Ario injected him again. Dyer testified that he fell asleep, and after he woke up, noticed that everyone had left and that his rings, money, and .38 caliber gun were missing. Dyer said he asked Belinda Murray what happened to his gun and whether his brother had his rings. She told him that she had put his gun in the closet with Ario's and that she did not know whether Jackson had his rings. Dyer asked her who was standing over him when he fell asleep and she told him that it was Warren. After retrieving both guns, Dyer testified that he and Belinda Murray walked through the housing project looking for Warren, and soon returned when their search was fruitless.

Dyer testified that when Warren arrived at the Murray house, Belinda Murray opened the door and let him in. Dyer said that he asked Warren for his rings, they began arguing, and that Dyer began hitting Warren with the guns. Dyer admitted pistol-whipping Warren but testified that he was "confused ... hurt [and] mad" and that he "didn't know ... what was actually going on." Dyer remembered pointing the gun at Jackson and Ario and pushing them away when they walked in.

The next thing that Dyer said he recalled was sitting in Jackson's car with his head down, crying. He said that Jackson put his arms around Dyer and told him that it would "be cool." Dyer remembered the car stopping, exiting the car, and hearing gun shots. He did not remember whether he fired any of the shots, but did not deny...