Lee Earp v. Cullen

• Decision Date: 19 October 2010
• Docket Number: No. 08-99005.,08-99005.
• Citation: 623 F.3d 1065
• Parties: Ricky Lee EARP, Petitioner-Appellant, v. Vincent CULLEN, Warden of California State Prison at San Quentin, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

623 F.3d 1065

Ricky Lee EARP, Petitioner-Appellant,

v.Vincent CULLEN, ^* Warden of California State Prison at San Quentin, Respondent-Appellee.

No. 08-99005.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted March 22, 2010.

Filed Oct. 19, 2010.

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Robert S. Gerstein (argued); Statia Peakheart and Dean R. Gits, Office of the Federal Public Defender; Sean Kennedy, Federal Public Defender, Los Angeles, CA, for petitioner-appellant Ricky Lee Earp.

James W. Bilderback, II (argued), Supervising Deputy Attorney General; Keith H. Borjon, Supervising Deputy Attorney General; Pamela C. Hamanaka, Senior Assistant Attorney General; Dane R. Gillette, Chief Assistant Attorney General; Edmund G. Brown, Jr., Attorney General of California, Los Angeles, CA, for respondent-appellee Vincent Cullen.

Appeal from the United States District Court for the Central District of California, Manuel L. Real, District Judge, Presiding. D.C. No. 2:00-CV-06508-R.

Before: JEROME FARRIS, D.W. NELSON, and RICHARD C. TALLMAN, Circuit Judges.

OPINION

TALLMAN, Circuit Judge:

Petitioner-Appellant Ricky Lee Earp was sentenced to death after a jury convicted him of first-degree murder for the rape and murder of eighteen-month-old Amanda Doshier. ¹ We affirmed in part but remanded in part Earp's first appeal of the denial of his petition for a writ of habeas corpus and instructed the district court to conduct an evidentiary hearing addressing two specific issues: (1) Earp's allegations of prosecutorial misconduct relating to the testimony of witness Michael Taylor; and (2) Earp's claim of ineffective assistance of counsel arising from a failure to sufficiently investigate mitigation evidence. Earp v. Ornoski, 431 F.3d 1158, 1164 (9th Cir.2005). After conducting numerous hearings, the district court again denied the petition, but granted a certificate of appealability on both claims. We affirm the denial of Earp's claim of ineffective assistance of counsel and reverse and remand the denial of the prosecutorial misconduct claim.

I

A

In his petition for a writ of habeas corpus, Earp alleged that the deputy district attorney, Robert Foltz, engaged in misconduct by intimidating Michael Taylor, a witness who was going to testify in support of Earp's motion for a new trial. Taylor initially averred that he overheard fellow inmate Dennis Morgan admit, while the two were incarcerated in Los Angeles, to being at Earp's home the day Amanda was attacked. Taylor later recanted his original statement by claiming that it was a lie, and that Earp offered to pay Taylor if he would say that Morgan admitted to being present the day the crime occurred. However, Taylor again changed his story. This time, Taylor claimed that prosecutor Foltz and Edwin Milkey, the investigating sheriff's homicide detective, coerced him into recanting his original statement, and he affirmed his earlier statement about Morgan's admission.

The district court originally found Taylor incredible on the basis of his multiple declarations and denied Earp's claim of prosecutorial misconduct without conducting an evidentiary hearing. We reversed the district court after concluding that a question that turns on the “veracity of the witnesses ... could not be adjudicated without an evidentiary hearing.” Earp, 431 F.3d at 1170. In analyzing both whether Earp had a full and fair opportunity to develop his claim and whether he presented a colorable claim, we emphasized the importance of conducting an evidentiary hearing before making the requisite credibility determinations. Id. at 1169-72. We remanded to allow Earp “an opportunity to prove the facts supporting his claim.” Id. at 1172.

On remand, Taylor, Foltz, and Milkey testified. Taylor testified that Foltz and three police officers met with him to discuss his original declaration and coerced him into recanting. Taylor claimed that Foltz threatened him and that Foltz directed Taylor on how to respond to certain questions. Finally, Taylor reaffirmed the statements he made in his original declaration. Foltz stated that he conducted an interview with Taylor after receiving Taylor's original statement claiming he overheard Dennis Morgan admit to being present at Earp's home. Foltz testified that Taylor voluntarily recanted his statement after learning that he would have to testify in court. Foltz maintained that neither he nor Milkey instructed Taylor on how to answer questions. They also did not threaten Taylor in any manner during any part of the interview. Milkey corroborated Foltz's testimony. He testified that Taylor became nervous after learning that he would have to testify regarding his statement, and that Taylor was not coached on how to answer questions posed during the interview. Milkey denied all allegations that he or Foltz threatened or intimidated Taylor.

In an effort to bolster the credibility of Taylor, Earp sought to introduce the testimony of Cindy Doshier, the victim's mother, at the evidentiary hearing. According to Earp, Doshier was prepared to testify that she too was intimidated by Foltz after she testified in support of the defense at trial. The district court allowed Earp to call Doshier as a witness, but then appointed separate counsel to advise Doshier of her rights under the Fifth Amendment. Doshier subsequently invoked her Fifth Amendment right against self-incrimination, and the district court accepted her invocation on a blanket basis.

In its order denying Earp's petition, the district court expressly rejected Taylor's testimony as incredible, and found Foltz and Milkey to be credible witnesses independent of all other testimony received. Consequently, the district court denied Earp's allegation of prosecutorial misconduct. Earp now challenges the exclusion of Doshier's testimony, asserting that he was deprived of a full and fair opportunity to prove his claim due to the district court's improper acceptance of Doshier's invocation of her rights under the Fifth Amendment.

B

We conduct de novo review of challenges to the invocation of the Fifth Amendment. United States v. Antelope, 395 F.3d 1128, 1133 (9th Cir.2005). The Fifth Amendment states that “[n]o person ... shall be compelled in any criminal case to be a witness against himself.” U.S. Const. amend. V. In order to properly claim the protections against self-incrimination, a witness must show that his testimony would “support a conviction under a federal criminal statute ... [or] would furnish a link in the chain of evidence needed to prosecute the claimant for a federal crime.” Hoffman v. United States, 341 U.S. 479, 486, 71 S.Ct. 814, 95 L.Ed. 1118 (1951). A witness justifiably claims the privilege if he is “confronted by substantial and real, and not merely trifling or imaginary, hazards of incrimination.” United States v. Apfelbaum, 445 U.S. 115, 128, 100 S.Ct. 948, 63 L.Ed.2d 250 (1980) (internal quotation marks and citations omitted).

While the Fifth Amendment protects witnesses from incriminating themselves on the basis of past conduct, it “provides no protection for the commission of perjury.” Id. at 127, 100 S.Ct. 948; Glickstein v. United States, 222 U.S. 139, 142, 32 S.Ct. 71, 56 L.Ed. 128 (1911) (“[I]t is also true that the immunity afforded by the constitutional guaranty relates to the past, and does not endow the person who testifies with a license to commit perjury.”). There is “no doctrine of ‘anticipatory perjury,’ ” and a “future intention to commit perjury” does not create a sufficient hazard of self-incrimination to implicate the Fifth Amendment privilege. Apfelbaum, 445 U.S. at 131, 100 S.Ct. 948.

We applied this principle in United States v. Vavages, 151 F.3d 1185, 1192 (9th Cir.1998), and held that the district court erred in recognizing a witness's invocation of the Fifth Amendment when the basis for the invocation was the witness's fear that the testimony about to be given “would subject her to a perjury prosecution.” When a witness has not yet testified, “[t]he shield against self-incrimination ... is to testify truthfully, not to refuse to testify on the basis that the witness may be prosecuted for a lie not yet told.” Id. (quoting United States v. Whittington, 783 F.2d 1210, 1218 (5th Cir.1986)). A blanket invocation of the Fifth Amendment in such circumstances is not acceptable because there is no “valid basis” for the assertion. Id.

This case is indistinguishable from Vavages. The district court permitted Doshier to anticipatorily claim the Fifth Amendment privilege because it believed that she was going to testify untruthfully. Supreme Court and Ninth Circuit precedent clearly preclude pre-emptive invocations of the privilege. The district court erred by accepting Doshier's assertion of the Fifth Amendment.

Nonetheless, the State contends that Doshier properly asserted her Fifth Amendment privilege because she faced a substantial and real hazard of incrimination. According to the State, the testimony Doshier planned to give at the evidentiary hearing could have established that a declaration she completed in 1997 was perjurious. “Fear of a perjury prosecution can typically form a valid basis for invoking the Fifth Amendment ... where the risk of prosecution is for perjury in the witness' past testimony.” Vavages, 151 F.3d at 1192 n. 3. This argument is not persuasive, however, because the district court did not rely on Doshier's past testimony as the basis for her Fifth Amendment privilege. It is the district court's duty to determine the basis for a witness's assertion of the Fifth Amendment privilege. Hoffman, 341 U.S. at 486, 71 S.Ct. 814(“It is for the court to say whether [a witness's] silence is justified, and to require him to answer if ‘it clearly appears to the court that he is mistaken.’ ” (citations omitted)). The district court allowed Doshier to invoke the Fifth Amendment because her proposed testimony would expose her to the...