Payton v. Cullen

• Decision Date: 02 September 2011
• Docket Number: No. 07–99020.,07–99020.
• Citation: 658 F.3d 890,11 Cal. Daily Op. Serv. 11416,2011 Daily Journal D.A.R. 13574
• Parties: William Charles PAYTON, Petitioner–Appellant,v.Vincent CULLEN, Warden of California State Prison at San Quentin,* Respondent–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

658 F.3d 890

11 Cal. Daily Op. Serv. 11,416

2011 Daily Journal D.A.R. 13,574

William Charles PAYTON, Petitioner–Appellant,

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

No. 07–99020.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 14, 2010.Filed Sept. 2, 2011.

Gail Ivens, Deputy Federal Public Defender, (argued); Brian M. Pomerantz, Deputy Federal Public Defender, Los Angeles, CA, for the petitioner-appellant.A. Natasha Cortina, Deputy Attorney General, San Diego, CA, for the respondent-appellee.Appeal from the United States District Court for the Central District of California, Manuel L. Real, District Judge, Presiding. D.C. No. CV–94–04779–R.Before: PAMELA ANN RYMER, RONALD M. GOULD, and JOHNNIE B. RAWLINSON, Circuit Judges.

OPINION

RYMER, Circuit Judge:

William Charles Payton raped and murdered Pamela Montgomery in the early hours of the morning on May 26, 1980. She had been stabbed twelve times, six of the wounds in a line from Montgomery's stomach to her groin. After that he repeatedly stabbed Patricia Pensinger with a knife, as well as her ten-year old son Blaine who was trying to help his mother. Pensinger suffered 40 stab wounds to her face, neck, back, and chest; Blaine had 23 stab wounds to his face, neck, and back. They survived. Payton's wife testified that when he got home at 6:15 AM, his clothes, face, and hands were covered in blood.

Payton was convicted of the first degree murder and rape of Pamela Montgomery, and the attempted murders of Patricia and Blaine Pensinger. He was sentenced to death. The California Supreme Court affirmed on direct appeal and on habeas review. People v. Payton, 3 Cal.4th 1050, 13 Cal.Rptr.2d 526, 839 P.2d 1035 (1992). Payton filed a federal habeas petition on May 3, 1996; in two orders, one issued June 1, 1999 and the other December 17, 1999, the district court granted summary judgment for the state on guilt phase claims, and for Payton on a claim of instructional error applying California's “factor (k).” Cal.Penal Code § 190.3(k). Having granted the writ on this sentencing issue, the court did not address the merits of other penalty phase claims—IV(A)(5), IV(C)(1)-(17), IV(D), and V(A)-(D). The parties cross-appealed.

The three-judge panel reversed on the factor (k) issue, and affirmed on Payton's claims that his counsel rendered ineffective assistance in failing to investigate and present evidence about his personal, family, and mental background and to pursue the background of a jailhouse informant during the penalty phase; that prosecutorial misconduct offended due process; and that he received inadequate funds to develop defenses and investigate informants. Payton v. Woodford, 258 F.3d 905, 922–25 (9th Cir.2001). The panel also rejected Payton's arguments that his counsel prejudicially failed to develop and present evidence of Post Traumatic Stress Disorder (PTSD) resulting from service in Vietnam, and that his sentence should be reversed for cumulative error. Id. at 925. The case was reheard en banc. Payton v. Woodford, 273 F.3d 1271 (9th Cir.2001) (granting rehearing en banc and ordering panel opinion not to be cited as precedent). The en banc panel reinstated the district court's decision on factor (k), Payton v. Woodford, 299 F.3d 815, 822 (9th Cir.2002) (en banc), applying pre-AEDPA standards. The Supreme Court held that AEDPA applied. Woodford v. Payton, 538 U.S. 975, 123 S.Ct. 1785, 155 L.Ed.2d 662 (2003). Applying AEDPA, the en banc panel again affirmed on factor (k), Payton v. Woodford, 346 F.3d 1204, 1206–07 (9th Cir.2003), and the Supreme Court reversed. Brown v. Payton, 544 U.S. 133, 147, 125 S.Ct. 1432, 161 L.Ed.2d 334 (2005). On August 15, 2005, the en banc panel remanded to the district court to consider Payton's “remaining claims not already addressed on the merits.”

On remand, Payton sought to relitigate several issues that the district court (and the three-judge panel) had previously decided. The district court believed that it could rehear previously adjudicated claims, but saw no convincing reason to do so. It addressed the “remaining claims” that had not been resolved, denying each and thus, denying relief on Payton's petition. The court granted a certificate of appealability (COA) on Claim IV(C)(15), which challenges the constitutionality of California's lethal injection protocol.

In addition to the certified issue, Payton appeals what he calls two “procedural issues” and two uncertified issues. The “procedural issues” arise out of Claim IV(A)(4)—whether counsel rendered ineffective assistance in the penalty phase for failure to investigate and present evidence of social history—and Claim IV(B)(1)—whether the prosecution's failure to disclose a confidential informant's status as a government agent was a Brady violation. The district court denied both claims in its 1999 ruling on summary judgment, and refused to reconsider them on remand. The two uncertified issues, on which Payton seeks certification, are Claim IV(A)(5)—whether he was deprived of effective assistance of counsel for failure to investigate or present evidence of PTSD at the penalty phase—and Claim IV(E)—whether his sentence must be overturned because of cumulative error. The district court did not reach either issue in its 1999 orders, although both issues were raised on appeal and resolved by the three-judge panel. In its most recent order, the district court denied both claims on the merits.

We consider all claims as if they were properly before us. We dismiss the challenge to California's lethal injection protocol as premature, and otherwise affirm the judgment.

I

Payton's habeas petition claims that California's lethal injection protocol amounts to cruel and unusual punishment. The protocol in place when his petition was filed was revised on May 15, 2007. In turn, that protocol was invalidated because it failed to comply with applicable procedural requirements. Morales v. Cal. Dep't of Corrs. & Rehab., 168 Cal.App.4th 729, 85 Cal.Rptr.3d 724, 733 (2008). No new protocol was in place when the district court ruled.¹ As Payton agrees, the claim was unripe, and it should have been dismissed. He remains free to renew the challenge to a current protocol.²

II

The parties dispute what was before the district court on remand, and whether it abused its discretion in refusing to consider two claims. Regardless, considering all of Payton's arguments and evidence proffered in support, we conclude that both claims fail on the merits.

A

First, Payton contends that trial counsel, James Merwin, failed to conduct an adequate investigation and to present sufficient mitigation evidence to individualize and humanize him or to explain his background to the jury in the penalty phase. We disagree.

One mental health expert had evaluated Payton before Merwin took over Payton's defense; Merwin then consulted two additional mental health experts, Dr. Ernest Klatte and Dr. Edward Kaufmann, before trial. They found that Payton was intelligent, had no evidence of organic brain pathology, had a serious personality disorder, and had abused drugs in the past. They concluded Payton had no viable mental state defense. Payton indicated that he had problems dealing with women and sex. He also related that his parents were divorced when he was five, and he didn't know his biological father until he was about twenty-five; his mother remarried an engineer who adopted Payton; and his parents were kind to him, spent considerable time with him, and spoiled him. In addition, Merwin or his investigator interviewed members of Payton's family (his half brothers, biological father, and parents), and requested school records and information on Payton's military service. The defense called eight witnesses during the penalty phase who focused on Payton's remorse, commitment to religion, and positive influence on other inmates.

Since trial, Payton adduced evidence that he suffered from PTSD; he had experienced an early feeling of neglect; for the first five years of his life that his biological father was there, his father was alcoholic and abusive, and molested and raped Payton's step-sister; he was sad as a child; his stepfather was stern and verbally abusive; he had a possible learning disability; and he began using drugs as a teenager. Payton produced new expert reports in 2006 from Julie Kriegler, a social historian; Pablo Stewart, a psychiatrist; and Ricardo Weinstein, a neuropsychologist. They explain Payton's family history, and offer observations about traumatized children. The experts conclude that Payton suffered from extreme mental and emotional disturbance.

Nothing that Merwin was told at the time of trial would have alerted him to a family history of the sort that Payton now espouses. The new expert reports run counter both to what contemporaneous examinations by Dr. Klatte and Dr. Kaufmann revealed, and to earlier reports in Payton's Idaho state prison records.³ Counsel interviewed family members, sought records, and consulted experts who conducted thorough evaluations. In these circumstances we cannot see how Merwin performed deficiently. See, e.g., Hendricks v. Calderon, 70 F.3d 1032, 1038–39 (9th Cir.1995).

With respect to PTSD, the record indicates that Payton spent twenty-two days in Vietnam, saw no action, and was removed due to drug abuse. The California Supreme Court found, based on an evidentiary hearing held by a special master, that Payton's account of a combat role was untrue, counsel was not deficient in failing to investigate PTSD, and that Payton had not shown prejudice as the jury would “undoubtedly have given [evidence of PTSD] little weight once it learned that the primary basis for the initial diagnosis—the vivid and compelling descriptions of defendant's alleged combat experiences in Vietnam—was sheer invention.” People v. Payton, 13 Cal.Rptr.2d 526, 839 P.2d at 1054. We cannot say this determination...