Payton v. Woodford

Decision Date20 October 2003
Docket NumberNo. 00-99000.,No. 00-99003.,00-99000.,00-99003.
Citation346 F.3d 1204
PartiesWilliam Charles PAYTON, Petitioner-Appellee, v. Jeanne WOODFORD, Warden, Respondent-Appellant. William Charles Payton, Petitioner-Appellant, v. Jeanne Woodford, Warden, Respondent-Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Bill Lockyer, Attorney General of the State of California, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Frederick R. Millar, Jr., Deputy Attorney General, A. Natasha Cortina, Deputy Attorney General, Nancy L. Palmieri, Deputy Attorney General, Esteban Hernandez, Deputy Attorney General, San Diego, California, for respondent-appellant Jeanne S. Woodford.

Maria E. Stratton, Federal Public Defender, Dean R. Gits, Deputy Federal Public Defender, Office of the Federal Public Defender, Los Angeles, California, and Rosalie L. Rakoff, A Professional Corporation, Santa Monica, California, for petitioner-appellee William Charles Payton.

On Remand from the United States Supreme Court.

Before: Mary M. SCHROEDER, Chief Judge, Harry PREGERSON, Alex KOZINSKI, Stephen S. TROTT, Ferdinand F. FERNANDEZ, Thomas G. NELSON, A. Wallace TASHIMA, William A. Fletcher, Richard A. Paez, Marsha S. Berzon and Richard C. TALLMAN, Circuit Judges.

Opinion by Judge PAEZ; Dissent by Judge TALLMAN.

OPINION

PAEZ, Circuit Judge:

A California jury convicted William Charles Payton ("Payton") of the first degree murder and rape of Pamela Montgomery and the attempted murder of Patricia Pensinger and her son, Blaine Pensinger. Payton was sentenced to death. Payton appealed both his underlying conviction and death sentence.

On direct appeal, the California Supreme Court affirmed both his conviction and his sentence. People v. Payton, 3 Cal.4th 1050, 13 Cal.Rptr.2d 526, 839 P.2d 1035 (1992). Payton filed a petition for a writ of habeas corpus and a subsequent amended habeas petition in federal district court, pursuant to 28 U.S.C. § 2254, after exhausting his state court remedies.

Payton raised several arguments in his habeas petition relating to the guilt and penalty phases of his trial. At issue here is Payton's contention that the jury did not consider, in imposing the death penalty, potentially mitigating evidence of his post-crime religious conversion and good behavior in prison. The California death penalty statute contains an eleven-factor test that requires the jury to weigh and balance specific aggravating and mitigating circumstances in deciding whether to impose the death penalty. The first ten factors instruct the judge or jury to evaluate various circumstances specific to the crime and to account for the defendant's age and prior convictions. The eleventh factor — factor (k) — functions as a catchall factor enabling the judge or jury to consider any other circumstance that the defendant presents in mitigation of a death sentence. During Payton's penalty phase, the trial court used the then-existing model jury instruction that incorporated this multifactor test. See 1 California Jury Instructions, Criminal ("CALJIC") 8.84.1 (4th ed.1979). This instruction simply quotes factor (k) as it exists in the death penalty statute, directing the jury to consider any circumstance "which extenuates the gravity of the crime even though it is not a legal excuse for the crime." Id.; Cal.Penal Code § 190.3 (1978). Payton contended that, although the jury instruction enabled the jury to consider pre-crime character and background evidence, see Boyde v. California, 494 U.S. 370, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990), it limited the permissible scope of factor (k) in such a way as to remove from the jury's consideration the only mitigating evidence he presented during the penalty phase of his trial — evidence of his post-crime religious conversion and good behavior in prison.

The district court rejected Payton's guilt phase arguments but agreed with his penalty phase arguments. The court therefore granted Payton's habeas petition and vacated his death sentence. A three-judge panel of this court, however, disagreed that Payton's penalty phase was fundamentally unfair, reversed the district court, and ordered the writ vacated. Payton v. Woodford, 258 F.3d 905 (9th Cir. 2001). We then took this case en banc, adopted the three-judge panel's decision that there were no guilt phase errors, but affirmed the district court's decision with respect to the penalty phase. We agreed with the district court that there was error during Payton's penalty phase, and we affirmed the grant of Payton's habeas petition. Payton v. Woodford ("Payton I"), 299 F.3d 815 (9th Cir.2002) (en banc).

In our initial en banc opinion, we held that the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1218 (April 24, 1996) ("AEDPA"), did not apply to our analysis of Payton's habeas claims because Payton filed his petition for the appointment of habeas counsel prior to April 24, 1996, the effective date of AEDPA. See Payton, 299 F.3d at 822. In reaching this conclusion, we relied on our prior decision in Calderon v. United States District Court ("Kelly"), 163 F.3d 530, 540 (9th Cir.1998) (en banc), in which we held that a petition for appointment of habeas counsel coupled with a motion for a stay of execution was sufficient for fixing the date for determining when AEDPA applies. After Payton I, the Supreme Court issued its decision in Woodford v. Garceau, 538 U.S. 202, 123 S.Ct. 1398, 1402-03, 155 L.Ed.2d 363 (2003), in which it held that cases are "pending" before the effective date of AEDPA only if a habeas petitioner has filed an "actual application for habeas corpus relief" in district court; a petition for the appointment of habeas counsel is not enough. In light of its decision in Woodford v. Garceau, the Supreme Court granted a writ of certiorari in Payton I, vacated the judgment, and remanded the case to us for further consideration. See Woodford v. Payton, ___ U.S. ___, 123 S.Ct. 1785, 155 L.Ed.2d 662 (2003).

This opinion ("Payton II") reflects our decision on remand.1 Here, we apply the strict AEDPA standard to our analysis of Payton's habeas claims and conclude, as we did in Payton I, that the district court properly granted Payton's habeas petition.

BACKGROUND INFORMATION2

In 1980, while spending the night at Patricia Pensinger's home, Payton raped Pamela Montgomery and stabbed her to death. He then entered the bedroom of Pensinger and her son Blaine, stabbed each of them repeatedly, and fled. Payton was charged with the first degree murder and rape of Montgomery and the attempted murders of Pensinger and her son.

At the guilt phase of Payton's jury trial, the prosecution presented testimony from the law enforcement officers who observed the crime scene, forensics experts who confirmed that saliva and semen samples taken from Montgomery's body were consistent with Payton's, Patricia and Blaine Pensinger who gave victims' accounts of the attacks, Payton's wife, who stated that soon after the attacks she saw blood on Payton's clothes, face, hands and penis as well as fingernail scratches and digs on his legs and back, and a fellow inmate, Alejandro Garcia, who recounted that Payton admitted that he raped and stabbed Montgomery and stabbed the Pensingers because he "had this urge to kill." The defense called no witnesses, and the jury convicted on all counts.

During the penalty phase, the prosecution presented as a witness a fellow inmate who testified to his jailhouse conversations with Payton in which Payton admitted that he had "severe problems with sex and women," that he wanted to "stab them and rape them," and that every "wom[a]n on the street he [saw] was a potential victim, regardless of age or looks." Payton's former girlfriend related that she had once awakened to find Payton holding a kitchen knife to her neck, and that he had stabbed her chest and arms. After she pushed him off, he stayed with her and held a towel around her bleeding arm until the police arrived.

The defense presented eight witnesses, including Payton's pastor, a deputy sheriff, four inmates, his mother, and the director of a religious organization ministering to prisoners. Their testimony, taken as a whole, tended to show that Payton had been "born again," made a sincere commitment to God, and was performing good works in jail.

Payton's pastor testified that in his opinion, Payton's conversion was credible and that he was "sincere in his statement and commitment to the Lord." The director of a religious outreach organization ministering to prisoners testified to her numerous conversations with Payton about his spiritual commitment and its manifestation in the bible study groups he established with other inmates. She described his conversion of other inmates, his admission to a correspondence bible college, and his writings.

Four inmates testified that they believed that Payton's religious conversion was sincere and that he had a calming influence on other inmates. One testified that Payton's intervention prevented him from committing suicide. A deputy sheriff assigned to Payton's jail facility related that Payton led prayer meetings and had a positive influence on other inmates. Payton's mother described praying together with her son and discussing religion on a weekly basis. Asked if she had noticed a change in her son, she responded: "Oh, yes.... He's totally immersed in the Lord.... He's an instrument of the Lord as far as he's concerned."

Prior to closing arguments in the penalty phase, the judge held an in-chambers conference with the attorneys about the jury instructions. They discussed the application of the multi-factor CALJIC instruction (No. 8.84.1) that guides the jury in determining whether to impose a sentence of life imprisonment or death.3 Factor (k), the eleventh and final factor, directed that the jury consider "[a]ny other circumstance which extenuates the...

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