Earp v. Ornoski

• Decision Date: 16 December 2005
• Docket Number: No. 03-99005.,03-99005.
• Citation: 431 F.3d 1158
• Parties: Ricky Lee EARP, Petitioner-Appellant, v. S.W. ORNOSKI, Warden, of California State Prison at San Quentin,<SMALL><SUP>*</SUP></SMALL> Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

431 F.3d 1158

Ricky Lee EARP, Petitioner-Appellant, v. S.W. ORNOSKI, Warden, of California State Prison at San Quentin,^* Respondent-Appellee.

No. 03-99005.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 14, 2005.

Filed September 8, 2005.

Amended December 16, 2005.

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Robert S. Gerstein, Santa Monica, CA, for the petitioner-appellant.

Dean R. Gits, Office of the Federal Public Defender, Los Angeles, CA, for the petitioner-appellant.

James William Bilderback II, Deputy Attorney General, Los Angeles, CA, for the respondent-appellee.

Appeal from the United States District Court for the Central District of California; Manuel L. Real, District Judge, Presiding. D.C. No. CV-00-06508-R.

Before FARRIS, D.W. NELSON, and TALLMAN, Circuit Judges.

ORDER AMENDING OPINION AND DENYING PETITIONS FOR REHEARING AND PETITIONS FOR REHEARING EN BANC AND AMENDED OPINION.

ORDER

The opinion filed September 8, 2005, slip opinion at 12700 and published at 423 F.3d 1024 (9th Cir.2005), is amended by the opinion filed concurrently with this order. With these amendments, the panel has voted to deny the petition for rehearing and the petition for rehearing en banc filed by the Appellant and the petition for rehearing and the petition for rehearing en banc filed by the Appellee.

The full court has been advised of the petitions for rehearing en banc filed by the Appellant and the Appellee and no judge of the court has requested a vote on either.

The Appellant's petition for rehearing and petition for rehearing en banc is DENIED and the Appellee's petition for rehearing and petition for rehearing en banc is DENIED. No further petitions for rehearing or rehearing en banc may be filed.

OPINION

TALLMAN, Circuit Judge:

Ricky Lee Earp is on death row in San Quentin, California, after being convicted in Los Angeles County of the 1988 rape and murder of eighteen-month-old Amanda Doshier. The jury convicted Earp of first-degree murder and found three death-qualifying special circumstances to be true: rape, sodomy, and lewd and lascivious conduct on a child under the age of fourteen. In the separate penalty phase, the jury recommended that Earp be put to death for his crimes. The California Superior Court ("trial court") imposed that sentence on February 21, 1992.

All reviewing courts thus far have upheld Earp's conviction and sentence. The California Supreme Court ("state court") affirmed Earp's conviction and death sentence on direct appeal, and summarily denied his state habeas corpus petition on the merits without affording him an evidentiary hearing on any of his claims. People v. Earp, 20 Cal.4th 826, 85 Cal.Rptr.2d 857, 978 P.2d 15 (1999). The United States Supreme Court denied certiorari. Earp v. California, 529 U.S. 1005, 120 S.Ct. 1272, 146 L.Ed.2d 221 (2000). Earp then filed a federal habeas corpus petition in the United States District Court for the Central District of California, raising nineteen constitutional claims. The district court denied Earp's habeas petition on all of them. Earp now brings this appeal.

We affirm the district court on seven of the claims Earp raises in this appeal, and vacate and remand for an evidentiary hearing on the two remaining claims.¹ This Opinion addresses Earp's claims of prosecutorial misconduct, ineffective assistance of counsel, and conflict of interest.² The district court conducted a limited evidentiary hearing on his conflict claim and denied his motion for an evidentiary hearing on his prosecutorial misconduct and ineffective assistance of counsel claims. Ultimately, all of these claims were denied on summary judgment.

Here we decide whether: (1) Earp alleges facts warranting an evidentiary hearing on his claim that the prosecutor committed prejudicial misconduct by dissuading Michael Taylor from testifying; (2) Earp alleges facts warranting an evidentiary hearing on his claim of ineffective assistance of counsel for failure to sufficiently investigate mitigation evidence; and (3) Earp's counsel suffered from a conflict of interest stemming from her intimate relationship with Earp during his trial and sentencing. We hold that Earp has alleged facts which, if proven true, may entitle him to relief on his prosecutorial misconduct and ineffective assistance of counsel claims. Because Earp has never been afforded an evidentiary hearing on these claims, we remand to the district court for an evidentiary hearing on his prosecutorial misconduct and ineffective assistance of counsel claims. As to Earp's conflict claim, we hold that the state court determination that counsel was not laboring under a conflict of interest was neither contrary to, nor an unreasonable application of, established federal law because the Supreme Court has expressly limited its conflict jurisprudence to cases involving multiple, concurrent representation. We therefore affirm the summary judgment in part, reverse in part, and remand for the necessary evidentiary proceedings.

I

We recount the facts and circumstances leading to and surrounding the crime and Earp's trial as necessary to understand our opinion.³ In August 1988, Earp was living in Palmdale, California, with his girlfriend, Virginia MacNair. On August 22, Cindy Doshier left her daughter, Amanda Doshier, with Earp and MacNair for a few days, as she had done several times before. On Thursday, August 25, MacNair left for work around 7:00 a.m., leaving Amanda with Earp. Around 3:00 p.m., a firefighter responded to an emergency call from a man reporting that a baby had fallen down some stairs. A preliminary assessment of her injuries led the first responder to conclude that Amanda needed more medical attention than he could give, so the firefighter took her to the hospital.

After the firefighter left with Amanda, Earp disappeared and spent the next two days with different sets of friends and family elsewhere in California before ultimately turning himself in to the police in Sacramento after learning that he was being sought in connection with Amanda's death. During the intervening time, Earp gave inquiring friends and neighbors a host of contradictory explanations for Amanda's injuries and his absence.

At 10:30 a.m. on Saturday, August 27, 1988, Amanda died. Medical examinations of Amanda revealed that she had severe bruising, blood, and tears in the rectal area and blood and gaping in the vaginal area consistent with sexual assault. However, no semen, sperm, or seminal fluid was found. The medical examiner determined that Amanda's death was caused either by multiple sharp blows to the top of the head or severe shaking.

At trial, Earp denied sexually molesting or otherwise harming Amanda. He blamed Dennis Morgan, Amanda's grandmother's boyfriend whom Earp had met while the two served time together in prison. Dennis Morgan testified that he met Earp while they were both inmates at the Susanville prison and had helped Earp get a job after his release. He also admitted that he was a heroin addict with nineteen different aliases, but refuted Earp's assertion that he was present at MacNair's house on August 25, denied knowing where Earp was living at the time, and claimed that he did not rape or molest Amanda. He also accused Earp of asking him to testify that there was a man named Joe at the house with them, and alleged that Paul Ford, a defense investigator, told him that Earp "needed someone who could place somebody else at the house."

At the penalty phase, Adrienne Dell, Earp's attorney, presented the following evidence in mitigation: Earp's mother and aunt testified generally about Earp's family background and legal troubles as a juvenile; MacNair testified as to her and her son's visits to Earp in jail; a cook from the California Youth Authority ("CYA") testified about Earp during his juvenile confinement; and a former associate warden at San Quentin testified that Earp would pose no danger in a high-security facility and that Earp could adjust to life in prison.

II

We review de novo the district court's denial of a petition for a writ of habeas corpus, Lambert v. Blodgett, 393 F.3d 943, 964 (9th Cir.2004), and the district court's grant of summary judgment, Davis v. Woodford, 384 F.3d 628, 638 (9th Cir.2004). "Factual findings and credibility determinations made by the district court in the context of granting or denying the petition are reviewed for clear error." Lambert, 393 F.3d at 964. The district court's application of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), as well as its conclusion that the standards set forth in AEDPA are satisfied, is a mixed question of law and fact which we also review de novo. Id. at 965.

Because Earp's petition was filed after April 24, 1996, federal review is circumscribed by AEDPA. Lockyer v. Andrade, 538 U.S. 63, 70, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003); see also Lambert, 393 F.3d at 965 (citing Woodford v. Garceau, 538 U.S. 202, 210, 123 S.Ct. 1398, 155 L.Ed.2d 363 (2003)). AEDPA mandates a highly deferential standard for reviewing state court determinations. Under AEDPA, a writ of habeas corpus:

shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).

We review de novo the district court's interpretation of AEDPA standards governing the grant or denial of an evidentiary hearing, Baja v. Ducharme, 187 F.3d 1075, 1077 (9th Cir.1999), and we review for abuse of discretion the district court's ultimate...