Nunnemaker v. Ylst

• Decision Date: 17 November 1989
• Docket Number: No. 89-15050,89-15050
• Citation: 904 F.2d 473
• Parties: Owen Duane NUNNEMAKER, Petitioner-Appellant, v. Eddie S. YLST, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 473

904 F.2d 473

Owen Duane NUNNEMAKER, Petitioner-Appellant, v. Eddie S. YLST, Respondent-Appellee.

No. 89-15050.

United States Court of Appeals Ninth Circuit.

Submitted Nov. 17, 1989. ^*

Decided Feb. 21, 1990.

As Amended on Denial of Rehearing and Rejection of Rehearing

En Banc May 25, 1990.

Juliana Drous, San Francisco, Cal., for petitioner-appellant.

Ronald E. Niver, Deputy Atty. Gen., San Francisco, Cal., for respondent-appellee.

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

Before FARRIS, PREGERSON and RYMER, Circuit Judges.

PREGERSON, Circuit Judge:

Owen Duane Nunnemaker, a California state prisoner, appeals the district court's dismissal of his petition for a writ of habeas corpus filed under 28 U.S.C. Sec. 2254. A California jury convicted Nunnemaker of first degree murder under Cal.Penal Code Sec. 187. At trial, a psychiatrist called by the state prosecutor gave testimony on statements made by Nunnemaker in a post-arrest interview. Nunnemaker contends that the admission of the psychiatrist's testimony

violated his Fifth and Sixth Amendment rights, that his Fifth and Sixth Amendment claims are not barred by procedural default, and that he received ineffective assistance of counsel. In light of the Supreme Court's recent decision in Harris v. Reed, --- U.S. ----, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989), decided after the district court ruled on Nunnemaker's petition, we reverse in part and remand the case to the district court for consideration of Nunnemaker's Fifth and Sixth Amendment challenges to his conviction. We affirm the district court's judgment that Nunnemaker was not deprived of effective assistance of counsel.

BACKGROUND

On January 30, 1976, Owen Duane Nunnemaker was convicted in California state court of first degree murder. He was sentenced to life in prison.

At trial, Nunnemaker introduced expert testimony to establish a diminished capacity defense then available under California law. To rebut this testimony the state prosecutor called as a witness a psychiatrist who interviewed Nunnemaker two days after his arrest. At the time of the interview, Nunnemaker was told that the psychiatrist was working for the prosecution. Nunnemaker, however, was not informed that he had the right to remain silent and the right to an attorney. At trial, defense counsel made several specific objections to certain statements made by the state's psychiatrist, but failed to challenge the entire testimony on the grounds that it was based on an interview conducted in violation of Nunnemaker's Fifth and Sixth Amendment rights.

On direct appeal to the California Court of Appeal, Nunnemaker raised for the first time his federal constitutional challenges to the testimony of the state's psychiatrist. Affirming the conviction, the state appellate court expressly avoided these challenges and held that "the failure to interpose an objection during trial preclude[d its] consideration on review." The state appellate court, however, considered on the merits--and rejected--Nunnemaker's ineffective assistance of counsel claim. On direct appeal, the California Supreme Court denied Nunnemaker's petition for hearing, without comment or case citation, on September 27, 1978.

Nunnemaker petitioned the California courts for a writ of habeas corpus. In his habeas petitions, he raised, among other claims, his federal constitutional challenges to the testimony of the state psychiatrist and his ineffective assistance of counsel claim. His petitions were denied. ¹

Nunnemaker then filed a habeas petition under 28 U.S.C. Sec. 2254 in the United States District Court for the Northern District of California. The district court dismissed the petition without prejudice because the petition did not make clear whether all state remedies had been exhausted. ² Nunnemaker filed a second petition for habeas relief in the California Supreme Court, arguing again that his statements to the Nunnemaker filed another federal habeas petition. The district court issued an Order to Show Cause on July 8, 1988. On December 9, 1988, the district court denied the petition. The court held that Nunnemaker's state procedural default barred review of the Fifth and Sixth Amendment challenges to the prosecution's psychiatrist's testimony, and that Nunnemaker had not been deprived of effective assistance of counsel.

state prosecution psychiatrist were "clearly inadmissible," and stating in greater particularity his claim of ineffective assistance of counsel. That petition was also denied, without comment or case citation, by the California Supreme Court on April 7, 1988.

Nunnemaker filed a timely notice of appeal. This court has jurisdiction over the district court's final order under 28 U.S.C. Sec. 2253.

STANDARD OF REVIEW

We review the district court's denial of habeas corpus relief de novo. McKenzie v. Risley, 842 F.2d 1525, 1531 (9th Cir.) (en banc), cert. denied, 488 U.S. 901, 109 S.Ct. 250, 102 L.Ed.2d 239 (1988). The question whether Nunnemaker was deprived of effective assistance of counsel is a mixed question of fact and law reviewed de novo. Strickland v. Washington, 466 U.S. 668, 698, 104 S.Ct. 2052, 2070, 80 L.Ed.2d 674 (1984); Deutscher v. Whitley, 884 F.2d 1152, 1155 (9th Cir.1989).

DISCUSSION

I. Procedural Bar

This case presents the issue whether the California Supreme Court's denial of an original petition for writ of habeas corpus without comment or case citation constitutes a "plain statement" sufficient to establish the procedural default bar of federal habeas review under the Supreme Court's recent decision in Harris v. Reed, 109 S.Ct. 1038. We hold that it does not.

The Supreme Court has held that a state prisoner barred by procedural default from raising a federal constitutional claim in state court "could not litigate that claim in a Sec. 2254 habeas corpus proceeding without showing cause for and actual prejudice from the default." Engle v. Isaac, 456 U.S. 107, 110, 102 S.Ct. 1558, 1562, 71 L.Ed.2d 783 (1982) (citing Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977)). In Harris v. Reed, the Supreme Court applied this rule, but held that "a federal claimant's [state] procedural default precludes federal habeas review ... only if the last state court rendering a judgment in the case rests its judgment on the procedural default." 109 S.Ct. at 1043 (emphasis added). The Court explained that Wainwright v. Sykes' holding that a state procedural default may bar federal habeas review is based on the adequate and independent state ground doctrine, under which the Court "will not consider an issue of federal law on direct review from a judgment of a state court if that judgment rests on a state-law ground that is both 'independent' of the merits of the federal claim and an 'adequate' basis for the court's decision." Id. at 1042 (citing Fox Film Corp. v. Muller, 296 U.S. 207, 210, 56 S.Ct. 183, 184, 80 L.Ed. 158 (1935); Murdock v. City of Memphis, 20 Wall. 590, 635-36, 22 L.Ed. 429 (1875)). The Court in Harris applied the " 'plain statement' rule" of Michigan v. Long, 463 U.S. 1032, 1042 and n. 7 [103 S.Ct. 3469, 3477 and n. 7, 77 L.Ed.2d 1201], to state prisoner cases on federal habeas review, and held that "a procedural default does not bar consideration of a federal claim on either direct or habeas review unless the last state court rendering judgment in the case 'clearly and expressly' states that its judgment rests on a state procedural bar." Harris v. Reed, 109 S.Ct. at 1043 (quoting Caldwell v. Mississippi, 472 U.S. 320, 327, 105 S.Ct. 2633, 2638, 86 L.Ed.2d 231 (1985)).

Under Harris, then, a procedural default bars review in federal habeas proceedings only if the last state court ruling on a case states the basis of its decision. Procedural default alone does not bar federal review; the state court's ruling must have been based, at least in part, on an "adequate and independent" state procedural rule. Harris v. Reed, 109 S.Ct. at 1042. Harris undertakes to resolve the Here, the California Supreme Court was the "last state court to render judgment in the case" because Nunnemaker's last filing with that court was an original habeas petition raising again his Fifth Amendment challenge to the state psychiatrist's testimony. ⁴ That court did not clearly and expressly state its reliance on Nunnemaker's procedural default when it denied his final habeas petition. The petition raised Nunnemaker's objection to the testimony of the state's psychiatrist and Nunnemaker's ineffective assistance of counsel claim. From the record before us, we cannot say that the California Supreme Court's denial of Nunnemaker's final petition, without comment or case citation, was based on a procedural default rather than on the underlying merits of Nunnemaker's claims. The rationale and plain language of Harris require that, where, as here, a state supreme court does not plainly state in its summary denial of an original habeas petition that its ruling rests on a state procedural bar, federal habeas review is not precluded. ⁵

problem--often faced by district courts--of discerning from an ambiguous state court ruling the basis of a decision to deny habeas relief to a state prisoner raising federal constitutional claims. The plain statement requirement ensures that federal courts will decline to review state prisoners' federal constitutional claims only where required by the interests of comity. ³

In fact, the Supreme Court discussed in Harris the issue now before us. The Court addressed concerns raised over the burden the plain statement requirement would place on state courts ruling on habeas petitions. The Court stated that "a state court that wishes to rely on a procedural bar rule in a one-line pro forma order easily can write that 'relief is denied for reasons of a procedural default.' " Harris v. Reed, 109 S.Ct. at 1044 n. 12. The California Supreme Court did not do that in this...