McDowell v. Calderon
| Decision Date | 26 February 1997 |
| Docket Number | No. 96-99000,96-99000 |
| Citation | 107 F.3d 1351 |
| Parties | 46 Fed. R. Evid. Serv. 749, 97 Cal. Daily Op. Serv. 1360, 97 Daily Journal D.A.R. 2002 Charles E. McDOWELL, Petitioner-Appellant, v. Arthur CALDERON, Warden of the California State Prison at San Quentin, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Andrea G. Asaro, Rosen, Bien & Asaro, San Francisco, California, for petitioner-appellant.
Robert F. Katz, Deputy Attorney General, Los Angeles, California, for respondent-appellee.
Appeal from the United States District Court for the Central District of California, Mariana R. Pfaelzer, District Judge, Presiding. D.C. No. CV-90-04009-MRP.
Before: WIGGINS, THOMPSON and TROTT, Circuit Judges.
In 1984, a jury in California found Charles E. McDowell, Jr., guilty of murder, attempted murder, attempted rape, and burglary. The jury found true the special circumstances of felony murder/burglary and felony murder/rape. McDowell was sentenced to death.
After exhausting his claims for relief in state court, McDowell filed his first amended petition for federal habeas relief in the district court. This is an appeal from the denial of that petition. In the petition, McDowell argues he received ineffective assistance of counsel during the guilt phase of his trial and asserts several errors occurred during the penalty phase. We have jurisdiction under 28 U.S.C. § 2253, and we affirm.
On May 20, 1982, Paula Rodriguez was working as a house cleaner at the Bardsley residence. At that time, McDowell was living with his companion, Lea D'Crenza, in the same neighborhood. At approximately 1:00 p.m., neighbors heard screams coming from the Bardsley residence. Theodore and Dolores Sum telephoned the Bardsleys. They heard more screams through the telephone and then it was disconnected.
The Sums went to the Bardsley home to investigate. Theodore Sum opened the front door and saw a nude man whom he identified at trial as McDowell. McDowell rushed at Theodore Sum and slashed his neck with a knife. The Sums returned to their home and telephoned the police. McDowell was later seen running from the Bardsley home, into the D'Crenza home, and then, later, walking away from the D'Crenza home.
Police officers immediately arrived at the Bardsley home and found Rodriguez stabbed to death in the den. She had been cut twice on the neck; stabbed twice in the chest, once in the abdomen, and once in the left arm; and had deep knife wounds on her hands. She was lying in a supine position with her skirt pulled up, her legs apart, her underwear cut, her blouse slashed, and her body covered with blood. Seminal fluid was found on her underwear. Police officers found her two-year old daughter unharmed upstairs.
Police Officer Henry Petroski followed a trail of blood from the front door of the Bardsley home onto the sidewalk. The trail of blood led to the D'Crenza home. Officer Petroski entered the D'Crenza home and followed the trail of blood through the home. A bloodstained knife was lying on the floor in the kitchen. Officer Petroski followed the trail outside the home to a house approximately 850 feet away from the D'Crenza home.
From the bushes, Officer Petroski heard a male voice say, Officers pulled McDowell from the bushes and arrested him. McDowell's wrist and a finger were cut. He was transported to a hospital for medical treatment.
En route to the hospital and during his stay at the hospital, McDowell made several damaging statements. For example, McDowell stated that he had watched a movie the night before which involved the rape, strangulation, and stabbing of a woman. He stated that he "felt a force" come over him and the movie made him decide to go to the Bardsley home and "hurt" Rodriguez. He further stated that the blood on his clothing belonged to Rodriguez.
McDowell was charged with murder, attempted murder, attempted rape, and burglary, in violation of California Penal Code Sections 187, 261, 459, and 664. Two special circumstances were alleged: felony murder/burglary, under California Penal Code Section 190.2(a)(17)(vii), and felony murder/rape, under California Penal Code Section 190.2(a)(17)(iii).
During the guilt phase of his trial, McDowell conceded guilt to the murder, rape, and burglary. He argued, however, that he did not have the intent to kill Rodriguez and, therefore, was not guilty of the special circumstances. After two days of deliberation, the jury found McDowell guilty on all counts and found true the special circumstances.
During the penalty phase, the prosecution presented evidence of two prior crimes committed by McDowell: a conviction for lewd and lascivious conduct, involving Curtis M.; and an uncharged rape, involving Patricia H.
In mitigation, McDowell's counsel presented family members and a former neighbor who testified about McDowell's tragic childhood, a nurse who was his primary therapist when he was incarcerated in a Mentally Disordered Sex Offender program, and a probation officer who supervised McDowell after the Curtis M. offense. After two-and-one-half days of deliberation, the jury returned a verdict of death. The state trial court imposed the death sentence.
The California Supreme Court affirmed the conviction and sentence. People v. McDowell, 46 Cal.3d 551, 250 Cal.Rptr. 530, 763 P.2d 1269 (1988). The United States Supreme Court denied McDowell's petition for certiorari. McDowell v. California, 490 U.S. 1059, 109 S.Ct. 1972, 104 L.Ed.2d 441 (1989). In September 1989, the California Supreme Court denied McDowell's first state habeas corpus petition by a postcard denial. In March 1990, the United States Supreme Court denied McDowell's second petition for certiorari. McDowell v. California, 494 U.S. 1039, 110 S.Ct. 1503, 108 L.Ed.2d 637 (1990).
In December 1990, McDowell filed his first federal habeas corpus petition with the district court. In October 1991, the district court granted McDowell leave to file a second state petition to exhaust his ineffective assistance of counsel claims. By a postcard denial, the California Supreme Court denied the petition in July 1992. McDowell filed his amended petition in the district court in May 1993.
The district court denied McDowell's petition in November 1995, but granted McDowell a certificate of probable cause. This appeal followed. 1
To warrant federal habeas corpus relief, McDowell, a state prisoner, must establish that his conviction or sentence violates the federal Constitution, a federal statute, or treaty. Bonin v. Calderon, 59 F.3d 815, 823 (9th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 718, 133 L.Ed.2d 671 (1996). We review de novo the district court's denial of his habeas corpus petition. Weygandt v. Ducharme, 774 F.2d 1491, 1493 (9th Cir.1985). We review for clear error any factual findings made by the district court; the state court's factual findings are entitled to a presumption of correctness. Bonin, 59 F.3d at 823, 28 U.S.C. § 2254(d); Melugin v. Hames, 38 F.3d 1478, 1482 (9th Cir.1994).
McDowell argues his counsel, Howard Gillingham, rendered ineffective assistance during the guilt phase of his trial because (1) Gillingham failed to adequately investigate and to present a defense based on McDowell's alleged intoxication at the time of the murder; and (2) during closing argument, Gillingham conceded McDowell's guilt of felony murder, and then did not effectively argue why McDowell lacked the intent to kill, which lack of intent would have rendered him not guilty of the special circumstance required for a sentence of death in a felony murder conviction.
Because a claim of ineffective assistance of counsel raises a mixed question of law and fact, we review the claim de novo. Harris v. Wood, 64 F.3d 1432, 1435 (9th Cir.1995). We review de novo whether counsel's performance was deficient and whether prejudice resulted from any deficient performance. Thompson v. Calderon, 86 F.3d 1509, 1515 (9th Cir.1996); see also Strickland v. Washington, 466 U.S. 668, 698, 104 S.Ct. 2052, 2070, 80 L.Ed.2d 674 (1984) ().
McDowell first must establish that his " 'counsel's representation fell below an objective standard of reasonableness ... considering all the circumstances ... under prevailing professional norms.' " Harris, 64 F.3d at 1435 (quoting Strickland, 466 U.S. at 688, 104 S.Ct. at 2064-65). McDowell must overcome a "strong presumption that counsel rendered adequate assistance and exercised reasonable professional judgment in making decisions." Thompson, 86 F.3d at 1515 (internal quotations and citation omitted).
McDowell also must establish prejudice resulted from any deficient performance. Id. He must demonstrate " " Clabourne v. Lewis, 64 F.3d 1373, 1378 (9th Cir.1995) (quoting Strickland, 466 U.S. at 694, 104 S.Ct. at 2068).
McDowell asserts Gillingham's performance was deficient because he failed to timely investigate whether McDowell was under the influence of alcohol or various controlled substances at the time of the murder. McDowell complains that Gillingham did not obtain timely testing of his blood and urine samples, taken on the day of his arrest. He argues that, had Gillingham presented evidence of his alleged intoxication 2 at the time of the murder, the jury would have found he did not have the intent to kill which, at that time, was an element of the felony murder special...
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