Gentry v. Sinclair

• Citation: 705 F.3d 884
• Decision Date: 15 January 2013
• Docket Number: No. 09–99021.,09–99021.
• Parties: Jonathan Lee GENTRY, Petitioner–Appellant, v. Stephen SINCLAIR, Respondent–Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

705 F.3d 884

Jonathan Lee GENTRY, Petitioner–Appellant,

v.Stephen SINCLAIR, Respondent–Appellee.

No. 09–99021.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 17, 2011.

Filed Aug. 28, 2012.

Amended Jan. 15, 2013.

Timothy K. Ford (argued), MacDonald Hoague & Bayless; Rita J. Griffith, Seattle, WA, for Petitioner–Appellant.

Paul D. Weisser (argued), Gregory J. Rosen, Office of the Attorney General, Olympia, WA, for Respondent–Appellee.

Appeal from the United States District Court for the Western District of Washington, Robert S. Lasnik, District Judge, Presiding. D.C. No. 2:99–CV–00289–RSL.

Before: RAYMOND C. FISHER, RICHARD A. PAEZ, and RICHARD R. CLIFTON, Circuit Judges.

ORDER

This court's opinion, filed August 28, 2012, is amended as follows:

1. On page 9871 of the slip opinion, replace the second full paragraph, before the indented quotation, with the following:

At the time of the murder, Jonathan Lee Gentry was free on bail and awaiting trial on a charge of first degree rape. He was staying at his brother's home near the golf course. Witnesses reported seeing a man on the golf course trail at about the time of the murder. Their descriptions led to an investigation involving Gentry, which the Washington Supreme Court described as follows:

2. On page 9872, replace the first sentence of the paragraph that begins on the bottom of the page and extends to the next page, with the following sentence:

Additionally, the State introduced scientific evidence linking Gentry to a hair found on the victim.

With the opinion as amended, the Appellant's petition for panel rehearing and petition for rehearing en banc, filed October 2, 2012, is denied. The full court has been advised of the petition for rehearing and rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. SeeFed. R.App. P. 35; 9th Cir. R. 35–1 & advisory committee note 2. No subsequent petitions for rehearing, rehearing en banc, or rehearing before the full court may be filed.

OPINION

CLIFTON, Circuit Judge:

Jonathan Lee Gentry was convicted in a Washington state court of aggravated first degree murder, with a finding of the aggravating circumstance of committing the murder to protect or conceal the identity of a person committing a crime, and was sentenced to death. The Washington Supreme Court affirmed the conviction and sentence and the United States Supreme Court denied Gentry's petition for certiorari. State v. Gentry (“ Gentry ”), 125 Wash.2d 570, 888 P.2d 1105, 1156,cert. denied,516 U.S. 843, 116 S.Ct. 131, 133 L.Ed.2d 79 (1995). Subsequently, the Washington Supreme Court denied Gentry's petition for post-conviction relief. In re Personal Restraint Petition of Jonathan Lee Gentry (“ Gentry PRP ”), 137 Wash.2d 378, 972 P.2d 1250, 1271 (1999). Through several orders, the district court denied Gentry's petition for a writ of habeas corpus under 28 U.S.C. § 2254, and he appeals that denial to us.

One of Gentry's habeas claims is that his trial counsel was ineffective at the penalty phase for failing to investigate Gentry's psychological history and consequently failing to present mitigating evidence of dysfunction within that history. The district court determined that this claim was not exhausted before the Washington Supreme Court and, ultimately, that the claim was procedurally defaulted. We disagree with this conclusion of the district court and hold that Gentry exhausted this claim. We also hold that the Washington Supreme Court adjudicated this claim on the merits. We nevertheless affirm the district court's denial of habeas relief on this claim because the Washington Supreme Court's disposition of the claim was not an unreasonable application of clearly established federal law or based on an unreasonable determination of the facts.

We are not persuaded by the other arguments Gentry sets forth. Thus, we affirm the denial of habeas relief on those claims as well.

I. Background

The body of 12–year–old Cassie Holden was found near a footpath just off of the main trail in a wooded area, adjacent to a golf course in Bremerton, Washington, on June 15, 1988. The victim had been missing since she had gone on a walk in the area two days earlier. She had just arrived in Bremerton on June 11 to spend the summer with her mother, although she resided in Pocatello, Idaho, with her father and stepmother.

The autopsy revealed that the victim was struck in the head with a blunt object 8 to 15 times, and that one of those blows was the cause of death. A 2.2–pound rock was found at the crime scene and believed to be the murder weapon. Although her clothing was partially removed, the autopsy did not conclusively show any evidence of sexual assault.

At the time of the murder, Jonathan Lee Gentry was free on bail and awaiting trial on a charge of first degree rape. He was staying at his brother's home near the golf course. Witnesses reported seeing a man on the golf course trail at about the time of the murder. Their descriptions led to an investigation involving Gentry, which the Washington Supreme Court described as follows:

In August of 1988, the Kitsap County Prosecutor obtained a search warrant for the Gentry residence that produced clothing similar to that worn by the man seen on the golf course. One pair of shoes had been recently cleaned, but there were bloodstains on the shoelaces. The prosecutor also obtained a warrant for hair and blood samples from Gentry and the trial court appointed counsel to represent him in connection with the hair and blood testing. Over defense counsel's objection, the blood samples and a “Negroid” hair found on Cassie's body were subjected to several types of testing, including DNA tests....

The forensics tests took many months to complete. While awaiting their results, Gentry was tried and convicted on the pending rape charge and transferred from the Kitsap County Jail to the prison at Shelton. In September of 1989, jail inmate Brian Dyste told authorities Gentry made incriminating statements while they were both in the county jail. Another inmate, Tim Hicks, subsequently reported additional incriminating statements Gentry allegedly made after his transfer to Shelton. Leonard Smith, who was also at Shelton at the time, confirmed Hicks' allegation.

Gentry PRP, 972 P.2d at 1254.

The State ultimately charged Gentry with first degree felony murder and first degree premeditated murder, and the State gave notice of its intent to seek the death penalty. As to the charge of premeditated murder, the State alleged three aggravating circumstances to support the death penalty: (1) the murder was committed to conceal the commission of a crime; (2) the murder was committed to conceal the identity of a person committing a crime; and/or (3) the murder was committed during the course or furtherance of a sexual assault.

At trial, the State relied on scientific evidence linking the victim with blood found on Gentry's shoe. The tests excluded Gentry and his brother as the source of the blood. The forensic scientist testified that only 0.18 percent of the Caucasian population would have blood matching all of the characteristics examined in the investigation. The victim's blood matched all of the characteristics of the blood taken from Gentry's shoe.

Additionally, the State introduced scientific evidence linking Gentry to a hair found on the victim. The forensic scientist testified that one hair found on the victim was microscopically similar to the arm hair of Gentry and his brother Edward. At the time of the murder Gentry was living at his brother's home, while his brother was at sea with the Navy. The scientist testified, however, that the evidence did not establish that the hairs came only from either Gentry or his brother; the hair could match any other African–American individual with similar hair characteristics. The scientist also testified that some other hairs found on the victim's thigh and shoe did not come from Gentry or his brother Edward.

The State also introduced testimony linking Gentry to the area where the victim's body was found. Three witnesses testified to seeing an African–American man in the area of the murder scene around the time that the victim disappeared. The first two witnesses, a mother and daughter, testified that they saw a man walking past their home, a short distance from where Gentry was living, toward the golf course. The mother later identified the man she saw as Gentry. The third witness testified seeing an African–American man who matched the description given by the mother and daughter standing just off the main trail adjacent to the golf course.

The State called inmates Dyste, Smith, and Hicks to the stand, all of whom testified about incriminating statements Gentry made to them while in prison, consistent with statements they had previously given to authorities. Dyste testified that a card game he was playing with Gentry was interrupted when Gentry was called to speak with investigators. Upon Gentry's return, Dyste testified that Gentry said “They found my hair on the bitch,” and that Gentry admitted to killing the victim, but stated that “they can't prove it.” Dyste further testified that he was not given or promised anything for testifying and that he did not know Hicks or Smith.

Smith testified that while playing cards with Gentry in prison, Gentry unexpectedly stated, “I killed my girlfriend,” and that Gentry proceeded to call her a “bitch.” Smith testified that Hicks was also present during this statement, along with a few other inmates who were playing cards together. Smith further stated that Gentry later made similar statements in a conversation between just Smith and Gentry. Smith was cross-examined on his criminal history and his failure to come forward with Gentry's confession until a year after it happened.

Hicks, the last of the three inmates to testify, described a similar statement Gentry made while playing cards with...