Harris By and Through Ramseyer v. Wood, 94-99002
| Decision Date | 12 September 1995 |
| Docket Number | No. 94-99002,94-99002 |
| Citation | 64 F.3d 1432 |
| Parties | 95 Cal. Daily Op. Serv. 7193, 95 Daily Journal D.A.R. 12,284 Benjamin H. HARRIS, III, By and Through Judith H. RAMSEYER, Guardian ad Litem, Petitioner-Appellee, v. Tana WOOD, Superintendent, Washington State Penitentiary, Respondent-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Thorton Wilson, Thomas J. Young, Assistant Attorneys General, Olympia, WA, for respondent-appellant.
Allen M. Ressler, Kany M. Levine, Browne & Ressler, Seattle, WA, for petitioner-appellee.
Appeal from the United States District Court for the Western District of Washington.
Before: WRIGHT, BEEZER and HAWKINS, Circuit Judges.
Because Benjamin Harris was deprived of his Sixth Amendment right to effective assistance of counsel, we hold that the district court properly granted his petition for a writ of habeas corpus. His defense counsel's many deficiencies cumulatively prejudiced the defense.
The court granted Benjamin Harris's petition for a writ of habeas corpus for relief from his conviction for aggravated first degree murder and death sentence. The state appeals only the grant of relief from conviction. We have jurisdiction pursuant to 28 U.S.C. Secs. 1291, 2253. 1 We affirm.
We summarize the factual and procedural background, which is set out in more detail in Harris ex rel. Ramseyer v. Blodgett, 853 F.Supp. 1239, 1248-51 (W.D.Wash.1994).
In the early morning of June 14, 1984, Jimmie Turner's body was discovered. That same day, Harris asked the police if they had heard rumors that he was involved in the crime. On July 2, he told the police that he was with his girlfriend when Turner was killed. Sixteen days later, he told the police that he and Gregory Lee Bonds were driving around Turner's neighborhood when Turner was killed. Ray Meeks, an acquaintance of Harris and Bonds, gave a written statement to the police that implicated Harris.
On July 19, after being advised of his constitutional rights, Harris again told police that he was with Bonds in Turner's neighborhood when Turner was killed. He added that Bonds told him that Bonds had shot Turner in the neck and the head.
On July 27, Bonds was charged with aggravated first degree murder. Harris took two polygraph examinations and was then arrested. An amended information was filed on August 10, charging Harris and Bonds with aggravated first degree murder. 2 The alleged aggravating circumstance was a contract to have Turner killed.
On August 13, Harris requested an attorney, and the court appointed Murray Anderson. From August 13 to October 22 Anderson prepared for trial. According to Anderson's billing statements, he consulted with Harris for less than two hours.
Although police reports listed approximately 32 persons with knowledge of the murder and Harris told him of others, Anderson interviewed only three witnesses. He did not request an investigator to help interview witnesses.
Anderson did not obtain an independent evaluation of either the ballistic or the forensic evidence. He moved for a mental examination of Harris. Western State Hospital staff members concluded that Harris was competent to stand trial and was able to perceive the nature and quality of his act. Anderson then moved for a mental examination of Harris by an independent expert. Although the court granted the motion, Harris was not examined before trial.
On October 22, upon Anderson's advice, Harris gave a statement to the prosecutors. He admitted that he was present at the time of the homicide, that Bonds fired the initial shot, and that he himself fired the second shot. He denied that he agreed to pay Bonds to kill Turner. Trial began on that day.
On October 26, Meeks testified that Harris offered Bonds a contract to kill Turner and that Bonds accepted. Harris testified that both he and Bonds shot Turner, but denied that he offered Bonds a contract to kill Turner.
The jury returned a guilty verdict of aggravated first degree murder. From 1986 to 1993, Harris unsuccessfully sought direct and collateral relief in Washington state courts.
In March 1994, Harris successfully petitioned for habeas relief in district court. That court ordered his conviction vacated, finding that he was deprived of effective assistance of counsel and due process. It provided an extensive review of Anderson's performance. The state appeals.
We review de novo the grant of habeas corpus relief. Sanders v. Ratelle, 21 F.3d 1446, 1451 (9th Cir.1994). And we review de novo a claim of ineffective assistance of counsel, which is a mixed question of law and fact. Id. Such a claim requires a two-part inquiry. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984).
First, we decide whether Anderson's performance was deficient. Id. The question is whether "counsel's representation fell below an objective standard of reasonableness ... considering all the circumstances ... under prevailing professional norms." Id. at 688, 104 S.Ct. at 2065. In answering this question, we "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance...." Id. at 689, 104 S.Ct. at 2065.
Second, we decide whether the deficient performance prejudiced the defense. Id. at 687, 104 S.Ct. at 2064. The question is whether "there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." Id. at 695, 104 S.Ct. at 2068.
This case involves many alleged instances of ineffective assistance of counsel. First, we treat briefly the eight instances of Anderson's deficient performance that the state does not dispute on appeal. These are relevant to the subsequent discussion of cumulative prejudice. We then address instances of Anderson's deficient performance that the state argues were not deficient. Finally, we explain how the deficiencies cumulatively prejudiced Harris's defense.
The state does not challenge the district court's conclusion that Anderson did not thoroughly investigate facts surrounding the charge and possible defenses, and that he failed to prepare adequately for trial. Anderson did not obtain an expert to prepare a social history, did not retain an investigator to interview witnesses, and interviewed only three of the 32 persons in the police reports (19 of whom testified at the guilt phase). Harris, 853 F.Supp. at 1256. Also, although Harris provided Anderson with names of persons who may have had knowledge of the murder, Anderson did not attempt to reach any of them. Finally, he did not obtain an independent evaluation of the ballistic evidence or the forensic evidence and spent considerably less time and effort in investigation and preparation than did counsel for codefendant Bonds. Id. at 1256-57.
The state does not challenge the district court's conclusion that Anderson failed to consult adequately with Harris and to inform him fully on important issues and decisions regarding his defense. Anderson's billing statement showed that he spent a total of one hour and 48 minutes consulting with Harris before trial. Id. at 1258.
The state does not challenge the district court's conclusion that Anderson failed to investigate Harris's mental and emotional status, including capacity to commit the crime and competence to stand trial. While Anderson was aware of Harris's history of emotional problems, he did not attempt to locate Harris's educational and medical records. Id. at 1260. Also, although Anderson obtained an order allowing an independent psychological evaluation, he failed to obtain an expert or to have Harris further evaluated until post trial proceedings. Id. Finally, because Anderson believed that Harris was competent, he failed to give the evaluating team at the hospital letters Harris had written. Id. These indicated that Harris was delusional. Id.
The state does not challenge the district court's conclusion that Anderson should have challenged the admissibility at trial of Harris's oral and written statements given to police officers made before October 22, 1984, regarding the events surrounding the murder.
The state does not challenge the district court's conclusion that Anderson failed to conduct proper voir dire of prospective jurors. Anderson was absent during part of the voir dire, leaving an inexperienced and unprepared associate to conduct it. Id. at 1265.
The state does not challenge the district court's conclusion that Anderson should have objected to some items of evidence. Without expressing an opinion as to admissibility, the court explained that Anderson should have objected to the admission of Harris's 1969 prior convictions and testimony regarding a list of persons Harris intended to kill. Id.
The state does not challenge the district court's conclusion that Anderson failed to propose or object to any jury instructions in the guilt phase. He did not argue the merits of submitting instructions on lesser included offenses. Id. at 1266.
Finally, the state does not challenge the district court's conclusion that counsel failed to raise or preserve meritorious issues in appellate proceedings. Anderson should have advised the court that the strongest ground for appeal may be ineffective assistance of counsel. Id. at 1271. Also, Anderson failed to correct several inaccuracies in the trial court's report to the Washington Supreme Court. Id.
We address here only those disputed deficiencies that we find to have been clearly below an objective standard of reasonableness.
The state challenges the district court's conclusion that Anderson's advice to Harris to give a statement to the prosecutors was deficient. We find that Anderson's advice fell below an...
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