Harris v. Vasquez

• Citation: 949 F.2d 1497
• Decision Date: 15 November 1991
• Docket Number: No. 90-55402,90-55402
• Parties: Robert Alton HARRIS, Petitioner-Appellant, v. Daniel VASQUEZ, * Warden of California State Prison at San Quentin, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1497

949 F.2d 1497

Robert Alton HARRIS, Petitioner-Appellant, v. Daniel VASQUEZ, ^* Warden of California State Prison at San Quentin, Respondent-Appellee.

No. 90-55402.

United States Court of Appeals Ninth Circuit.

Argued and Submitted May 14, 1990.

Decided Aug. 29, 1990.

As Amended Nov. 19, 1990.

Second Amended Opinion Aug. 21, 1991.

Rehearing and Suggestion for Rehearing En Banc Denied Nov.

8, 1991.

Mandate Stayed Pending Application

for Writ of Certiorari Nov. 15, 1991.

Appeal from the United States District Court for the Southern District of California.

Charles M. Sevilla and Michael McCabe, San Diego, Cal., and Michael Laurence, San Francisco, Cal., for petitioner-appellant.

Jay M. Bloom, Supervising Deputy Atty. Gen., and Louis R. Hanoian, Supervising Deputy Atty. Gen., San Diego, Cal., for respondent-appellee.

Kent S. Scheidegger, Special Deputy Atty. Gen., Sacramento, Cal., for the amici curiae, States of Idaho, Arizona, Montana, Nevada, and Washington.

Before ALARCON, BRUNETTI and NOONAN, Circuit Judges.

BRUNETTI, Circuit Judge:

On March 6, 1979, Robert Alton Harris ("Harris") was convicted of two counts of murder and sentenced to death. On March 26, 1990, Harris filed his third federal petition for a writ of habeas corpus in the United States District Court for the Southern District of California. In this petition, Harris alleged that the state had denied him competent psychiatric assistance at trial, that the prosecution had presented false psychiatric testimony, and that newly discovered evidence showed he had organic brain damage and other mental disorders. Harris also asserted that he had been subjected to an unlawful interrogation, and had been denied effective assistance of counsel. Without holding an evidentiary hearing, the district court denied Harris's petition. We affirmed in a decision published at 913 F.2d 606 (9th Cir.1990). Prior to the issuance of the mandate, however, Harris filed a petition for a rehearing and a suggestion for rehearing en banc. On November 29, 1990, before we had completed our review of the petition for a rehearing, Harris filed a motion for a limited remand to the district court for an evidentiary hearing, based on newly discovered evidence, on the question whether Joey Abshire was a state agent at the time he had a connection with Harris. We granted Harris's request.

The district court conducted a hearing and found that the newly discovered evidence was not credible. We have reviewed the findings and conclusions of the district court and the supplemental briefs filed by both sides in this court. We have amended our opinion to consider the questions raised concerning the newly discovered evidence and the applicability of McCleskey v. Zant, --- U.S. ----, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991), to Harris's third petition for a rehearing. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

I. Facts of Harris's Crimes ¹

Between the months of May and July of 1978, Harris twice asked his brother, Daniel, to help in a planned bank robbery. Harris told his brother that guns would be necessary for the robbery.

On July 2, 1978, Daniel stole two guns. On July 3, 1978, the two brothers purchased ammunition, went to a nearby rural area, and practiced firing the weapons by shooting at trees while running and rolling--a drill they considered appropriate in preparing for the bank robbery. On July 4, 1978, the two brothers purchased more ammunition and knit caps, in which they burned eye holes, to serve as masks in the bank robbery. They practiced shooting again that afternoon and then reconnoitered the area around the bank they intended to rob.

The brothers decided to steal an automobile for use as a getaway car. On July 5, 1978, the brothers saw a car parked in a grocery store parking lot across the street from the bank. John Mayeski, 15 years old, and Michael Baker, 16 years old, were in the car, eating hamburgers. Harris assured Daniel that nobody would be hurt, and then pulled his pistol and got in the back seat of the boys' car. With Daniel following in Harris's car, the boys' car was driven to the area where the brothers had been target practicing the day before.

Harris and the boys agreed that the boys should walk to the top of a fire trail, wait until Harris and his brother had left, and then report the car stolen, giving misleading descriptions of the thieves. When the boys began walking up the hill, Harris shot John Mayeski in the back. Harris fired another shot into Mayeski's head, and then ran after Michael Baker. Finding Baker crouching and screaming in the brush, Harris shot him four times. Harris then returned and shot Mayeski point-blank into his head. Finally, Harris took the rifle Daniel had been carrying and shot Mayeski again.

The brothers then left the murder scene and returned home, where Harris ate the remainder of the boys' hamburgers and laughed at Daniel for not having the stomach to join him. While the brothers continued to prepare for the bank robbery Harris laughed and giggled about shooting the boys, saying he had blown Michael Baker's arm off, and amused himself by imagining what it would be like to be a police officer and report the deaths to the boys' families. Harris laughed that from the point-blank shot he had blown John Mayeski's brains out and then flicked bits of flesh from the end of his pistol into the street. Later that day the brothers robbed the bank.

That same day the brothers were arrested for the bank robbery and taken into custody. When they were interrogated, Daniel informed the officers of the murders and confessed, placing the blame primarily on Harris. Harris listened to portions of Daniel's confession and he then confessed. At midnight, Harris and his brother were interviewed by Dr. Wait Griswold, a psychiatrist, concerning the murders and Harris told Griswold that he had shot the victims after assuring his brother they would not be hurt.

Harris and his brother were booked July 6, 1978, and the following day Harris repeated his confession in detail to Investigator Bolden. Harris confessed again the same day, an hour before his arraignment, to Officer Newman.

On July 15, 1978, Harris told his sister while she visited him in jail, "now I guess because I killed those two boys, they were only 16 years old, then robbed the bank and kidnapped them was because I really wanted to die." Harris's last extra judicial confession was made to a fellow inmate; when asked why he killed the boys, Harris answered, "I couldn't have no punks running around that could identify me, so I wasted them."

II. State Court Proceedings

The court appointed Thomas J. Ryan ("Ryan") to represent Harris throughout the trial proceedings in state court. During Ryan's pretrial investigation, Ryan "became aware of" a psychiatric evaluation performed by Dr. Wait Griswold at the request of the district attorney and of a report summarizing Griswold's examination results. In his report, Dr. Griswold detailed his evaluation of Harris which included 10 1/2 hours of psychological testing and scoring, 3 hours of psychiatric evaluation and report, and perusal of records, and stated:

Mr. Harris was able to give a clear and concise description of his behavior, prior to, during, and following the alleged offense. It is the opinion that Robert Harris is legally sane in that at the time of the alleged offense he knew right from wrong and was aware of the nature and quality of his act.

It is the opinion that:

A. The accused was, at the time of the alleged offense, so far free from mental defect, disease or derangement, as to be able, concerning the particular act charged, to distinguish right from wrong.

B. The accused was, at the time of the alleged offense, so far free from mental defect, disease or derangement, as to be able, concerning the particular act charged, to adhere to the right.

C. The accused does possess sufficient mental capacity to understand the nature of the proceedings against him and to cooperate intelligently in his own defense.

Ryan hired two psychiatrists on a confidential basis to review Griswold's report and to investigate mental defenses such as insanity, diminished capacity, and potential mitigation at the penalty phase. Ryan provided these psychiatrists with all of the material he had relating to Harris's background. The state paid for these experts, authorizing $1,000.00 for Dr. Read and $250.00 for Dr. Rodgers.

Ryan was aware of the fact that in 1971 Harris had received an abnormal EEG tracing suggestive of organic brain damage. See Harris v. Pulley, 885 F.2d 1354, 1368 (9th Cir.1988) ("Harris II ") The February 22, 1971, memorandum prepared by Dr. Joseph F. Aldrete stating the results of the abnormal EEG stated:

Impression: Abnormal EEG tracing suggestive of organic brain damage.

Deatils [sic]: This EEG is abnormal because of persistant [sic] dysrhythmias between the left frontal area and the right frontal area with theright [sic] being faster and sharper than the left. The left shows abnormal persistant [sic] slow waves.

Results of the dysrhythmias between the right posterior temporal runs and the left posterior runs with the left being faster and sharper than the right. The right shows persistant [sic] slow fada waves with some very sharp waves interspersed.

Comments: The EEG tracing suggests organic brain damage localized at the rpesent [sic] time to the left posterior frontal area and right posterior temporal area. This is felt to be secondary to chronic glue and solvent sniffing and if continued I would expect it to become generalized.

(Emphasis added.) Ryan explained that he did not use the abnormal 1971 EEG results during the guilt phase of Harris's trial because it would have been inconsistent with Harris's alibi defense. Harris II, 885 F.2d at 1368. Ryan was also aware of a subsequent EEG performed on Harris in 1977, only two years before the homicides, which demonstrated normal results.

At the guilt phase...