Hamilton v. Ayers

• Decision Date: 18 September 2009
• Docket Number: No. 06-99008.,06-99008.
• Citation: 583 F.3d 1100
• Parties: Michael Allen HAMILTON, Petitioner-Appellant, v. Robert L. AYERS, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

583 F.3d 1100

Michael Allen HAMILTON, Petitioner-Appellant, v. Robert L. AYERS, Respondent-Appellee.

No. 06-99008.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted January 20, 2009.

Filed September 18, 2009.

Katherine L. Hart, Law Offices of Katherine L. Hart, Fresno, CA; Saor E. Stetler, Law Offices of Saor E. Stetler, Mill Valley, CA, for petitioner Michael Allen Hamilton.

Catherine Chatman, Deputy Attorney General, Office of the California Attorney General, Sacramento, CA, for respondent Robert L. Ayers.

Appeal from the United States District Court for the Eastern District of California, Oliver W. Wanger, District Judge, Presiding. D.C. No. CV-F-90-00363-OWW-P.

Before: KIM McLANE WARDLAW, WILLIAM A. FLETCHER, and RICHARD A. PAEZ, Circuit Judges.

WARDLAW, Circuit Judge:

Michael Allen Hamilton, a California death row inmate, appeals from the district court's denial of his pre-AEDPA petition for a writ of habeas corpus challenging his 1982 conviction and death penalty sentence for multiple counts of first-degree murder. We deny Hamilton's claims for relief as to the guilt phase. However, we conclude that Hamilton's trial counsel was constitutionally ineffective at the penalty phase for failing to investigate and present to the jury the wealth of classic mitigating evidence that was available to him. Accordingly, we reverse and remand for issuance of the writ, unless the State elects to reprosecute the penalty phase.¹ Because we grant relief based on the ineffective assistance claim, we do not reach Hamilton's claim of prosecutorial misconduct at the penalty phase.

I. FACTUAL AND PROCEDURAL BACKGROUND

We recite verbatim the district court's statement of facts, which closely tracks the California Supreme Court's opinion, see People v. Hamilton, 48 Cal.3d 1142, 259 Cal.Rptr. 701, 774 P.2d 730, 733-35 (1989), and which neither party disputes.

In 1981, Hamilton, his wife Gwendolyn (Gwen) who was pregnant, and their four children, ages six, four, three and one, lived in Bakersfield. In March of that year, the Hamiltons purchased life insurance policies, $175,000 on Hamilton and $100,000 on Gwen, paying the initial premium for coverage until June. When they did not pay the second quarterly payment on time, the agent personally collected the payment from Hamilton, extending the policy into September. When the third premium was not received, the agent again visited the Hamiltons on October 17, collecting payment for two months from Gwen, extending the policies into November.

In September, Hamilton began an extramarital relationship with Brenda Burns. In October, he called his sister Carolyn Hamilton to ask if she knew anyone who would do something illegal for money. Later he told Carolyn he wanted someone to kill Gwen and offered her $20,000 from the insurance on Gwen's life if she would help find someone to do the killing. Hamilton told both Carolyn and his brother-in-law Lyle Palmer that he had a girlfriend, but if he left or divorced Gwen he wouldn't have his kids. Brenda's sister Sharon Burns also testified that Hamilton told her he didn't like the way Gwen was in bed, sexually, and he wanted to divorce her so he could live with Brenda.

Carolyn first asked another sister, Victoria (Vicki) Hamilton, who agreed to kill Gwen for $10,000 of the insurance money. However, Vicki moved to Texas a few days later. Carolyn then approached Gilbert Garay, a prior acquaintance she met when both worked as security guards for Porterville Private Patrol. Gilbert agreed to kill Gwen for $10,000.

On October 31, Hamilton and Brenda Burns went to K-Mart in Bakersfield and purchased a single-shot 12-gauge shotgun. Hamilton said he left his identification in the car, so Brenda purchased the gun and shells with money furnished by Hamilton.

That evening Hamilton, Gwen, and their children drove to Porterville to take their kids trick-or-treating with Carolyn's son. While accompanying the children trick-or-treating, Hamilton, Carolyn and Gilbert discussed plans for the murder. Hamilton told Carolyn he would start to drive his family home, but then stop on Highway 65 claiming one tire was flat, so that Carolyn and Gilbert could drive by and shoot Gwen. Carolyn and Gilbert left in Carolyn's truck a few minutes after Hamilton. As planned, Carolyn and Gilbert found Hamilton crouched down by the tire with Gwen standing beside him holding a flashlight. Although Carolyn drove by three to four times, Gilbert never pulled the trigger, so they eventually returned to Porterville.

Hamilton phoned Carolyn about an hour later to ask what happened. Carolyn made excuses and Hamilton said they would come back to Porterville the next day. The next day, Hamilton phoned Carolyn to say he would pretend to have lost his wallet while changing the tire. Hamilton and Gwen would stop at the same place on the pretext of looking for his wallet. Carolyn and Gilbert would follow them and shoot Gwen as previously planned.

That evening, Hamilton and his family again visited Carolyn, his mother and stepfather, Jacqueline (Jackie) and Sam Piper, in Porterville. Carolyn and Gilbert followed Hamilton about a half-hour after he left, and found him and Gwen at the same place, looking for the "lost" wallet. Carolyn and Gilbert drove by several times, but again Gilbert did not shoot. Hamilton was mad when he called Carolyn about an hour later, and she made more excuses.

The following day Hamilton called Carolyn with a new plan. As part of this plan, Carolyn called Gwen and told her that Hamilton's wallet had been found. Hamilton and Gwen for the first time left their children with Gwen's sister, who also lived in Bakersfield, and drove a white pickup truck to Porterville. When they arrived, Hamilton surreptitiously gave Carolyn his wallet, so she could return it to him in front of the family. Hamilton and Carolyn went to pick up Gilbert, and Carolyn and Gilbert told Hamilton they weren't going to shoot Gwen. Hamilton said he would do it. Hamilton said he would be hitchhiking, and instructed Carolyn and Gilbert to pick him up and take him back to his pickup.

This time everything went according to the new plan. Carolyn gave Hamilton an icepick, which he used to jab a hole in one of his pickup's tires. Hamilton stopped the pickup along the highway because one tire was going flat. He left Gwen in the truck and walked along the highway, ostensibly to find a place where he could phone for help. Carolyn and Gilbert picked him up in Carolyn's truck and drove him to a phone booth, where Hamilton called his mother and asked her to come help him. Mrs. Piper said she could not come until Carolyn returned with the truck. Carolyn and Gilbert then drove Hamilton back to where Gwen was waiting in the pickup. Hamilton took the shotgun, walked over to the pickup, and shot Gwen. He returned to the truck and demanded another shell. After reloading, he went back and shot Gwen again.

Gilbert drove back to the phone booth where they left Hamilton. Carolyn returned home with the truck after she dropped Gilbert off at a friend's house. Carolyn called Hamilton back at the phone booth and said their mother and stepfather were on the way. The Pipers drove Carolyn's truck to pick up Hamilton at the phone booth, and then to where Hamilton "discovered" that Gwen had been killed.

An autopsy revealed the cause of Gwen's death was shotgun wounds to the throat and chest, fired at close range. The fetus was viable and died from anoxia caused by Gwen's death.

Hamilton first told the police that Gwen had been killed while he was hitch-hiking [sic] to the phone booth. The next day, however, he said that she was killed by a Canadian whom he refused to identify. Eventually Vicki told the police of the plan to kill Gwen. With Vicki's consent, the police taped two phone calls between her and Carolyn. Carolyn and Gilbert each confessed when they were arrested, and were each charged with two counts of first degree murder with special circumstances. Both Carolyn and Gilbert agreed to plead guilty to second degree murder with a dangerous-weapon enhancement, and be sentenced to 16 years to life, in return for their testimony against Hamilton at trial. Carolyn and Gilbert both testified at trial, identifying Hamilton as Gwen's killer.

At trial, the defense attempted to show that Gilbert might have been the actual killer. Lilly Bardsley, the clerk from K-Mart who testified for the prosecution that she sold the shotgun to Brenda and Hamilton, was recalled by the defense and testified instead that she sold the gun to Brenda's sister Sharon, who was accompanied by both Hamilton and Gilbert. Sharon, also recalled by the prosecution in rebuttal, denied purchasing the shotgun. The ATF form filled out at the time the gun was purchased was signed with Brenda's name, and the prosecutor presented expert testimony that the signature was in Brenda's, not Sharon's, handwriting. Vicki testified that when she first talked to Carolyn after the murder, she assumed Gilbert was the shooter. Another defense witness testified that prior to Gwen's murder, Hamilton told her he suspected Vicki and her boyfriend, Stephen Fitzherbert (who was Canadian), were planning to kill him. Hamilton stated, "Well, you know my family, if they want anything bad enough, they'll kill for it." Hamilton did not testify.

The jury found Hamilton guilty as charged, and found true the charged special circumstances of intentional murder for financial gain, and two counts of multiple murder. The penalty trial was brief. The prosecutor presented documentary evidence that ten years previously Hamilton was convicted of grand theft. Defense counsel called Hamilton's mother, who testified that as a child Hamilton had been removed from the family home because of abusive conduct by his father, and placed in a series of foster homes. Hamilton requested permission to read a statement telling the penalty jury he was not guilty, but for unspecified...