Fairbank v. Ayers

• Decision Date: 10 August 2011
• Docket Number: No. 08–99018.,08–99018.
• Citation: 650 F.3d 1243,2011 Daily Journal D.A.R. 12056
• Parties: Robert Green FAIRBANK, Petitioner–Appellant,v.Robert L. AYERS, Jr., Warden for California State Prison at San Quentin, Respondent–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

650 F.3d 1243

2011 Daily Journal D.A.R. 12,056

Robert Green FAIRBANK, Petitioner–Appellant,

v.Robert L. AYERS, Jr., Warden for California State Prison at San Quentin, Respondent–Appellee.

No. 08–99018.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 10, 2010.Filed Feb. 15, 2011.Amended Aug. 10, 2011.

Mark Raymond Drozdowski, Federal Public Defender, Los Angeles, CA, for the appellant.Nanette Sue Winaker, Deputy Assistant Attorney General, San Francisco, CA, for the appellee.Appeal from the United States District Court for the Northern District of California, Charles R. Breyer, District Judge, Presiding. D.C. No. 3:98–CV–01027–CRB.Before: MARY M. SCHROEDER, SIDNEY R. THOMAS, and RONALD M. GOULD, Circuit Judges.

ORDER

The opinion is amended as follows:

1. Page 2473, line 19 to line 23. Replace:

Fricke's testimony was generally favorable to defendant, and any negative inferences were based on a trial strategy of gaining credibility with the jury to argue that Fairbank could be controlled in prison, thereby making a death sentence unnecessary.

With:

Fricke's testimony was generally favorable to defendant, and any negative inferences were based on a reasonable trial strategy of gaining credibility with the jury to argue that Fairbank could be controlled in prison, thereby making a death sentence unnecessary.

2. Page 2477, line 10 to line 17. Replace:

Because a federal court sitting in habeas must presume that a factual determination made by a state court is correct, and because there is no clear and convincing evidence to the contrary, we hold that Fairbank's prosecutorial misconduct claim is procedurally barred. See 28 U.S.C. § 2254(e); Bradshaw v. Richey, 546 U.S. 74, 76, 126 S.Ct. 602, 163 L.Ed.2d 407 (2005) ( “[A] state court's interpretation of state law ... binds a federal court sitting in habeas.”).

With:

“We must follow the well-settled rule that ‘the independent state grounds doctrine bars the federal courts from reconsidering the issue in the context of habeas corpus review as long as the state court explicitly invokes a state procedural bar rule as a separate basis for its decision.’ ” Jackson v. Giurbino, 364 F.3d 1002, 1006–07 (9th Cir.2004) (quoting McKenna v. McDaniel, 65 F.3d 1483, 1488 (9th Cir.1995)).

To bar federal review, the state procedural rule must also be adequate. That is, it must be “clear, consistently applied, and well-established at the time of the petitioner's purported default.” Melendez v. Pliler, 288 F.3d 1120, 1124 (9th Cir.2002) (internal quotation marks and citation omitted). We have held that California consistently applies its contemporaneous objection rule when a party fails to object to the admission of evidence. See Garrison v. McCarthy, 653 F.2d 374, 377 (9th Cir.1981); see also Melendez, 288 F.3d at 1125. On direct review, the California Supreme Court determined that defense counsel could have known the prosecutor's questioning was likely to elicit the racial slur and probably could have prevented the statement by objecting. See Fairbank, 16 Cal.4th at 1252, 69 Cal.Rptr.2d 784, 947 P.2d 1321. Because a federal court sitting in habeas must presume that this finding of fact is correct, see 28 U.S.C. § 2254(3), and because there is no clear and convincing evidence to the contrary, we conclude that the California Supreme Court applied an independent and adequate state procedural rule that bars federal review of Fairbank's prosecutorial misconduct claim.

Because Fairbank has defaulted his federal claim, for us to be able to review it, Fairbank must “demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law.” See Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); see also Franklin v. Johnson, 290 F.3d 1223, 1230–31 (9th Cir.2002). To establish cause for a procedural default, a petitioner must show that “some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule.” Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). We need not decide whether there is cause for the default because we conclude that Fairbank has not shown the requisite prejudice. The statement was never again referenced in the trial, and race or racial animus was never advanced as a factor in either Fairbank's actions or his potential sentence. As such, Fairbank has not shown that the statement “infect[ed] his entire trial with error of constitutional dimensions.” See Murray v. Carrier, 477 U.S. 478, 494, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986) (quoting United States v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982) (internal quotation marks omitted)).

With these amendments, the petition for rehearing is DENIED. The petition for rehearing en banc was circulated to the judges of the court, and no judge requested a vote for en banc consideration. The petition for rehearing en banc is DENIED. No further petitions for rehearing or rehearing en banc will be entertained.

OPINION

THOMAS, Circuit Judge:

Robert Green Fairbank, a California state prisoner, appeals the district court's denial of his 28 U.S.C. § 2254 habeas corpus petition challenging his guilty plea and capital sentence for murder. Fairbank alleges trial counsel rendered ineffective assistance by: (1) failing to investigate and present mitigating evidence; (2) presenting allegedly prejudicial and aggravating information; (3) advising Fairbank to plead guilty after two days of trial; and (4) portraying Fairbank in a negative light in closing arguments. Fairbank also alleges that the use of letters written by him to a jailhouse informant violated his right to counsel under the Sixth Amendment and that the prosecutor committed misconduct by eliciting testimony about Fairbank's racial slur. Finally, Fairbank alleges he was prejudiced by the cumulative impact of these errors. We have jurisdiction under 28 U.S.C. § 2253, and we affirm.

I

On December 5, 1985, Fairbank invited his neighbor, Arlene G., into his home under false pretenses and sexually assaulted her. Fairbank was convicted of crimes associated with this conduct in 1985. One week after this assault and Fairbank's subsequent arrest, while Fairbank was released on his own recognizance, Wendy Cheek disappeared. On December 14, 1985, a motorist found a body in a grove of trees near a highway, and fingerprints confirmed the body was Cheek's. The body was naked, had numerous stab wounds, and was partially burned. Fairbank was arrested and charged with the first degree murder of Cheek, with special circumstances of attempted rape, unlawful oral copulation, use of a deadly weapon, and torture.

While awaiting trial in 1986, Fairbank occupied a jail cell near John Szymkiewicz. Fairbank wrote Szymkiewicz numerous letters discussing evidence from the Cheek murder, and he asked Szymkiewicz to “cop to the [Cheek] murder or set up an alibi” in return for money. He also asked Szymkiewicz for help in hurting and intimidating the potential witnesses. Szymkiewicz contacted law enforcement officers to see if they would be interested in information about Fairbank's case in exchange for leniency in the charges pending against Szymkiewicz.

Prior to trial, Fairbank moved to exclude the letters, arguing that Szymkiewicz acted as a state agent to obtain incriminating statements in violation of Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). The state trial court held an evidentiary hearing on the claim, during which it heard testimony from six witnesses. The trial court held that there was no Massiah violation because the statements were not deliberately elicited by law enforcement personnel. In a later hearing, Szymkiewicz stated on cross-examination that he believed if he obtained enough information, the law enforcement officers would be interested. However, on re-direct, Szymkiewicz reiterated that the officers did not order or suggest to him to obtain more information. In this later hearing, the court again ruled that Szymkiewicz was not a state agent.

The case proceeded to trial. During voir-dire, Fairbank's trial counsel admitted that Fairbank had killed Cheek but repeatedly questioned the potential jurors about their views on elevating the homicide into first degree murder. As trial counsel explained to one panel, “what the evidence will show and what we are essentially conceding is that Mr. Fairbank is responsible for the killing, and it will be up to the jury to decide what degree of guilt should be put on that.” The prosecution's opening statement and first eight witnesses detailed the heinous nature of the Cheek murder and the Arlene G. assault. At one point during the opening statement, the prosecutor mentioned the Szymkiewicz letters and showed the jury a blown-up copy of one of the notes. After less than two full days of testimony, Fairbank pled guilty to first degree murder and the special circumstances of attempted oral copulation, torture, and use of a deadly weapon. Although Fairbank did not enter into any type of plea deal in exchange for his guilty plea, the prosecutor dropped the attempted rape special circumstance, and the court dismissed that charge.

Prior to the sentencing phase of the trial, Fairbank's trial counsel moved again to exclude the Szymkiewicz letters, arguing that the letters were irrelevant now that Fairbank had admitted guilt. The prosecution opposed this motion, explaining that the letters were relevant at sentencing to show Fairbank's state of mind both during and after the crime. The court admitted the two letters in which Fairbank sought Szymkiewicz's help in intimidating potential witnesses and took under submission a ruling on the other letters purporting to discuss facts of the crime.

During the sentencing phase, the defense strategy was to gain credibility with the jury by admitting the seriousness of Fairbank's crime but showing that...