Payton v. Davis

• Decision Date: 10 October 2018
• Docket Number: No. 17-55054,17-55054
• Citation: 906 F.3d 812
• Parties: William Charles PAYTON, Petitioner-Appellant, v. Ronald DAVIS, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

906 F.3d 812

William Charles PAYTON, Petitioner-Appellant,

v.Ronald DAVIS, Respondent-Appellee.

No. 17-55054

United States Court of Appeals, Ninth Circuit.

Argued and Submitted September 25, 2018 Pasadena, California

Filed October 10, 2018

Michael Parente (argued) and Susel Carrillo-Orellana, Deputy Federal Public Defenders; Margo Rocconi, Supervising Deputy Federal Public Defender; Hilary Potashner, Federal Public Defender; Office of the Federal Public Defender, Los Angeles, California; for Petitioner-Appellant.

A. Natasha Cortina (argued) and Holly D. Wilkens, Supervising Deputy Attorneys General; Julie L. Garland, Senior Assistant Attorney General; Xavier Becerra, Attorney General of California; Office of the Attorney General, San Diego, California; for Respondent-Appellee.

D.C. No. 2:94-cv-04779-R, Appeal from the United States District Court for the Central District of California, Manuel L. Real, District Judge, Presiding.

Before: Ronald M. Gould, Richard C. Tallman, and Johnnie B. Rawlinson, Circuit Judges.

TALLMAN, Circuit Judge:

William Charles Payton requests a certificate of appealability ("COA") to appeal the district court's denial of his motion under Federal Rule of Civil Procedure 60(d)(3), alleging fraud on the court and seeking relief from the court's prior order denying habeas relief under 28 U.S.C. § 2254. Payton argues that the district attorney who secured his conviction and death sentence made false sworn statements during the federal habeas proceedings, and that these statements were part of a larger scheme involving assignment of inmate informants to cells next to defendants incarcerated in Orange County, California, in hopes of obtaining incriminating admissions. Payton's motion also presents the threshold question—one of first impression in our circuit—whether Rule 60(d) is subject to the COA requirement in 28 U.S.C. § 2253(c)(1). We conclude that a COA is required, but that Payton is not entitled to one. We DENY his request.

I

Thirty-eight years ago, on May 26, 1980, Payton raped Pamela Montgomery and stabbed her to death with a butcher knife.¹ During the frenzied attack, he also attempted to kill Patricia Pensinger and her young son. Both survived and identified Payton as the attacker. A jury convicted him in 1981 and found the circumstances sufficient to sentence Payton to death. Nearly forty years later, the parties are still litigating Payton's conviction and sentence.

A

Sometime before May 26, 1980, Payton had been a boarder at Patricia Pensinger's home in Garden Grove, California. On that date, Pamela Montgomery and Patricia's 10-year-old son, Blaine, were living in the house. But Payton no longer resided there. At 4:00 a.m., Payton entered the kitchen, where Patricia—unable to sleep—was working on a crossword puzzle. Payton said he’d had car trouble. The two chatted, and Payton drank a few beers. Pamela Montgomery came in for a glass of water, and Patricia introduced her to Payton. He later asked Patricia if he could sleep on the couch, and she obliged. Patricia went to her bedroom, where Blaine was already sleeping.

Patricia was startled awake some time later when Payton stabbed her in the back with a butcher knife. She rolled over and he began to stab her in the face and neck. The vicious attack awakened Blaine. When Blaine tried to snatch the knife away, Payton stabbed him, too. When Payton tried to stab Patricia in the abdomen, the knife blade bent. Payton got off the bed and yelled he was leaving. Patricia told Blaine to escape while she distracted Payton. She found him in the kitchen with a second knife. Payton stabbed Patricia repeatedly in the back and attacked Blaine as he ran through the kitchen. When a male boarder woke up, Payton dropped the knife and fled. Patricia suffered a total of 40 stab wounds

to her face, neck, back, and chest. Blaine incurred 23 stab wounds to his face, neck, and back. Miraculously, both survived.

Pamela Montgomery was found dead on her bedroom floor, lying in a pool of blood. Her body had 12 stab wounds

, half of which formed a line from her stomach to pubic area. Pamela had been sexually assaulted. She also had defensive wounds. The saliva and semen collected from her body were consistent with Payton's. Pamela had been dead 15 to 30 minutes before her body was found. Payton fled that morning and was eventually arrested in Florida.

B

The Orange County District Attorney charged Payton with the rape and special circumstance murder of Pamela Montgomery, and the attempted murders of Patricia and Blaine Pensinger. While incarcerated in the Orange County Jail, Payton made incriminating statements to two inmates, Alejandro Garcia and Daniel Escalera, who reported his admissions to law enforcement. After an evidentiary hearing, the state trial court determined the two inmates were not police agents.

At the guilt phase of the trial, the prosecution offered Patricia's and Blaine's eyewitness accounts. Forensic experts testified about the bodily fluids taken from the victim's body, and law enforcement officers testified to the crime scene. Payton's wife testified that Payton had returned home with fingernail scratches on his back and covered in blood, some of which was still wet, including blood on his genital area.

Alejandro Garcia testified that Payton had confessed to him, while the two were in jail, that he had raped and stabbed Pamela Montgomery because he had "this urge to kill." Defense counsel impeached Garcia with his extensive criminal record and previous deals with law enforcement.² Garcia testified that he was not offered nor did he receive anything in exchange for his testimony against Payton. The defense called no witnesses. The jury convicted Payton on all counts.

At the penalty phase, a former girlfriend of Payton's testified that she once awoke, after intercourse, to Payton standing over her holding a kitchen knife to her neck, and that he began stabbing her chest and arms. Escalera, the other jailhouse informant, testified to his conversation during which Payton confessed he had "severe problems with sex and women," that he would "stab and rape them," and that every woman "was a potential victim, regardless of age or looks." Escalera admitted that he hoped for leniency in exchange for testifying against Payton; he too was impeached with his criminal record. The defense called eight witnesses. Their testimony focused on Payton's religious conversion in prison. In December 1981, the Orange County Superior Court jury returned a sentence of death.

C

The California Supreme Court consolidated and reviewed Payton's automatic direct appeal and a separate habeas petition alleging ineffective assistance of counsel. People v. Payton , 3 Cal.4th 1050, 13 Cal.Rptr.2d 526, 839 P.2d 1035, 1039 (1992). The state high court rejected Payton's claims related to the two jailhouse informants, reasoning that Payton "was given full opportunity to explore in front of the jury any motive to cooperate or other bias on the part of all the witnesses, including the jailhouse informant[s]." Id., 3 Cal.4th 1050, 13 Cal.Rptr.2d 526, 839 P.2d at 1040. Moreover, "[Escalera]'s testimony formed but a small part of the overall strong evidence against defendant" because "the independent evidence of defendant's crimes corroborated the informant's testimony."³ Id., 3 Cal.4th 1050, 13 Cal.Rptr.2d 526, 839 P.2d at 1041, 1043. The California Supreme Court affirmed the judgment of conviction and death sentence and denied Payton's habeas petition. Id., 3 Cal.4th 1050, 13 Cal.Rptr.2d 526, 839 P.2d at 1054. The United States Supreme Court denied certiorari. Payton v. California , 510 U.S. 1040, 114 S.Ct. 682, 126 L.Ed.2d 649 (1994).

Payton filed a second state habeas petition in 1996 that reasserted his informant-related claims. Payton alleged that the prosecutor engaged in misconduct by failing to disclose that the informants were government agents. Payton submitted evidence that deputy district attorney Michael Jacobs was at Escalera's change of plea hearing and met with Escalera's attorney during the pendency of Escalera's 1981 robbery case. The California Supreme Court denied all of Payton's claims.⁴

In 1996, Payton filed a petition for a writ of habeas corpus in federal court, where his case has remained for over two decades. Payton alleged, among other claims, violations related to the informants' testimony under Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Massiah v. United States , 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). The district court ultimately entered summary judgment for the State on Payton's informant-related claims, but granted habeas relief on an unrelated claim concerning the prosecutor's improper argument about mitigating evidence under factor (k) ("factor (k) issue").⁵ Both parties appealed.

We reversed on the factor (k) issue. Payton v. Woodford , 258 F.3d 905, 919 (9th Cir. 2001). We also granted a COA on Payton's prosecutorial misconduct claims. Id. at 910. In later rejecting those claims, we reasoned that Payton could not show prejudice. See, e.g. , id. at 920 ("[T]he government's case was overwhelming," as it "linked [Payton] to the crimes by physical evidence and eye-witness testimony," and "[t]he crimes were vicious and Payton had committed a similar attack in the past.") , 921 ("[A]ssuming counsel should have followed-up on [information regarding Garcia], we nevertheless see no reasonable probability that the results would have been different.") , 922–23 (rejecting Brady claim on the ground "that the additional, undisclosed information was [not] material, as it would not have undermined Garcia's credibility any more than his credibility was already undermined").

Sitting en banc, we affirmed the denial of relief as to the guilt phase, including Payton's informant-related claims. Payton v. Woodford , 299 F.3d 815, 819 n.1 (9th Cir. 2002) (en banc) ("We adopt the panel's reasoning on the guilt phase issues as our own."); see...