Fauber v. Davis

• Decision Date: 05 August 2022
• Docket Number: 17-99001
• Citation: 43 F.4th 987
• Parties: Curtis Lynn FAUBER, Petitioner-Appellant, v. Ronald DAVIS, Warden, California State Prison at San Quentin, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

43 F.4th 987

Curtis Lynn FAUBER, Petitioner-Appellant,

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

No. 17-99001

United States Court of Appeals, Ninth Circuit.

Argued and Submitted January 24, 2022 Pasadena, California

Filed August 5, 2022

John S. Crouchley (argued) and Ajay V. Kusnoor, Deputy Federal Public Defenders; Cuauhtemoc Ortega, Federal Public Defender; Office of the Federal Public Defender, Los Angeles, California; for Petitioner-Appellant.

Jonathan Matthew Krauss (argued), A. Scott Hayward, and Xiomara Costello, Deputy Attorneys General; James William Bilderback II and Dana M. Ali, Supervising Deputy Attorneys General; Lance W. Winters, Senior Assistant Attorney General; Gerald A. Engler, Chief Assistant Attorney General; Rob Bonta, Attorney General; Office of the Attorney General, Los Angeles, California; for Respondent-Appellee.

Before: Paul J. Watford, Daniel A. Bress, and Danielle J. Forrest, Circuit Judges.

Opinion by Judge Bress ;

Dissent by Judge Watford

BRESS, Circuit Judge:

In 1988, a California jury sentenced Curtis Fauber to death for murdering Thomas Urell with an ax. The California Supreme Court affirmed Fauber's conviction and sentence on direct appeal and later denied his state habeas petition. Fauber now seeks federal habeas relief. He argues that the state prosecutor improperly vouched for a witness's credibility, that his attorney was ineffective in not objecting to the vouching, and that the state trial court, in the penalty phase, improperly excluded the prosecution's earlier plea offer to Fauber as claimed mitigating evidence.

We hold that Fauber's claims lack merit. The state court's decisions are not contrary to or an unreasonable application of clearly established federal law, 28 U.S.C. § 2254(d)(1), and one of Fauber's claims is procedurally defaulted. We affirm the judgment of the district court.

I

A

More than thirty years ago, Curtis Fauber and his friend Brian Buckley broke into Thomas Urell's home to steal drugs. When Urell woke up and discovered the intruders, Fauber bludgeoned Urell to death with the blunt side of an ax. Extensive evidence connected Fauber to the crime, including Buckley's testimony (which was corroborated in key parts by unindicted confederate Mel Rowan), Urell's autopsy, various pieces of physical evidence, and Fauber's own admissions. We now summarize the facts based on the record before us and the California Supreme Court's decision on Fauber's direct appeal. See People v. Fauber , 2 Cal.4th 792, 9 Cal.Rptr.2d 24, 831 P.2d 249 (1992).

Fauber and Buckley met in the Army in January 1985. They became close friends, with Fauber visiting Buckley's family during breaks in service. In June 1985, the Army discharged Fauber and Buckley, and the two went to Buckley's mother's apartment in Ventura. After spending time in his home state of New Mexico, Fauber later returned to Ventura in the early summer of 1986 to stay with Buckley.

That summer, Fauber and Buckley regularly used drugs with Buckley's neighbors, Jan Jarvis and Mel Rowan. At one point, Jarvis mentioned that she had a former boyfriend named Thomas Urell who sold cocaine. Fauber was intrigued by the possibility of robbing Urell and asked where he lived. Jarvis drew a map showing the location and layout of Urell's house. The group talked about robbing the home and a week later, all four of them drove by Urell's house to scout it. Rowan told Fauber to "rip off" Urell immediately, but Fauber said: "No, we want to check it out for a few days." Buckley and Fauber surveilled the house two more times before the murder.

Approximately four days later, in the nighttime on July 16, 1986, Buckley and Fauber put their plan into motion. Fauber drove with Buckley to a store near Urell's home and parked his motorcycle there. They went to an adjacent beach and donned gloves, hats, and bandannas. Fauber carried a sawed-off shotgun. Fauber mentioned that he might have to kill Urell to prevent him from being a witness.

The two men walked to Urell's home and entered through a window. Buckley followed Fauber to the bedroom, where Jarvis had said the drugs would be located. They entered and found Urell sleeping in bed. As they entered, Urell woke up. In a fake Mexican accent, Fauber said: "Don't move." Urell pleaded with Fauber not to hurt him and said they could take anything they wanted. Buckley held the shotgun, and Fauber forced Urell onto his stomach and taped his hands behind his back.

With Urell detained, Fauber and Buckley searched the residence and took assorted items, including a small amount of cocaine. They also found a locked safe. Urell said it had nothing valuable in it and that he did not know the combination. Fauber then found an ax under the bed. Fauber held the ax above Urell and, without warning, bludgeoned him in the back of the neck with the ax's blunt side. Buckley heard the blow and left the room as Urell began making a hissing noise. Seconds later, Fauber delivered a second blow, which silenced Urell.

Fauber met Buckley in the kitchen and suggested putting the safe in Urell's vehicle. When Buckley asked him whether Urell was dead, Fauber said he did not know. Fauber then returned to the bedroom and Buckley heard Fauber hit Urell several more times with the ax. Fauber and Buckley loaded the safe onto Urell's El Camino and drove to Buckley's apartment.

Upon arrival around 1:00 a.m., Fauber and Buckley went to Rowan's apartment to obtain a key to a basement storeroom. Rowan saw a safe in the back of Urell's El Camino and asked Fauber if Urell had been home during the burglary. Fauber responded that Urell had not been home. Fauber and Buckley took everything they had stolen from Urell's residence and put it in a trailer owned by Buckley's mother. They then left to dispose of Urell's El Camino over a cliff.

After returning to the apartment, Fauber and Buckley used Urell's cocaine. At this point, Rowan returned and pressed Fauber about Urell's whereabouts. Fauber then admitted that Urell had been home. He also admitted that he had hit Urell with an ax and believed he had killed him. Fauber told Rowan he had killed Urell because Urell saw his face, and Fauber "was not ready to leave Ventura yet." Fauber also acknowledged that Urell was struggling to breath when he left.

The next day, Fauber discovered how to open the safe. After emptying its contents, Fauber and Buckley took the safe to another town and dumped it near a lake because Rowan did not want it in his storeroom. The safe contained small amounts of jewelry, gold, and silver coins; Jarvis was directed to throw most of it away.

When Urell did not appear for work the next day, Urell's friend Ronald Siebold went to his home and found Urell's lifeless body lying face down with his hands taped behind his back and a pillow on his head. The police arrived ten minutes later. Sheriffs who responded to the call described the room as "ransacked"—with drawers thrown open and clothes turned out—consistent with a robbery. They found an ax standing upright at the foot of the bed. Another police detective found the remnants of narcotics paraphernalia.

The Chief Medical Examiner for Ventura County, Dr. Frederick Lovell, examined Urell's body at the scene. He confirmed that Urell had died roughly 14 to 22 hours earlier. He also observed that Urell's shoulders and chest had a blue hue, suggesting that his blood lacked sufficient oxygen when he died.

Dr. Lovell also conducted an autopsy. The autopsy demonstrated that Urell's hands had been tied behind his back before he was killed. Blood splatter indicated that Urell had been struck repeatedly in the back of the neck. Wounds on Urell's lower left neck extending towards the skull evidenced closely grouped blows caused by a major force from a rectangular object. The wounds likely were struck from the same position and were consistent with the blunt side of an ax. The blows had prompted a "large amount of bleeding and hemorrhag[ing]," causing paralysis and limiting Urell's ability to breath. Urell also had a broken neck and "one bone was separated from the other where they're normally tied together by a series of very heavy, tough ligaments." Dr. Lovell concluded that based on the "heavy purple discoloration of the face and chest," the "extreme engorgement of the eyes" with bleeding under the skin, and the widespread hemorrhaging, Urell had died of either asphyxia

or suffocation.

Over the next few weeks, police began to connect Fauber to the murder. On July 20, 1986, they found Urell's El Camino 125 feet off the side of a cliff. Then, on July 31, they found the door to Urell's safe at a nearby lake. Eventually, the police arrested Hal Simmon, an acquaintance of Fauber's, after discovering that Simmon had been using Urell's telephone calling card. Simmon told the police he had received the number from "Brian and Curtis" and described where they lived. This led authorities to Fauber and Buckley.

In September 1986, police arrested Buckley for a traffic violation. Buckley provided details about Urell's murder, believing the information would not be used against him. That same month, police arrested Rowan for a parole violation. Rowan admitted his involvement in the robbery and discussed the murder.

With the evidence mounting, the Ventura County police sent a warrant for Fauber's arrest to his hometown of Española, New Mexico. Española police arrested Fauber, and officers then flew to New Mexico to interview him and take possession of any incriminating property. Fauber waived his Miranda rights. He admitted to police that Jarvis had told him about someone who had a lot of drugs and had drawn him a diagram to help him commit the robbery. He recalled that he and Buckley followed Jarvis and Rowan as they drove past the house.

Police found a piece cut from Urell's calling card in Fauber's wallet. In a camper that Fauber used in Ventura, police also found a road atlas that belonged to Urell and that was...