Payton v. Woodford

• Citation: 258 F.3d 905
• Decision Date: 10 May 2001
• Docket Number: No. 00-99000,PETITIONER-APPELLANT,RESPONDENT-APPELLEE,PETITIONER-APPELLEE,RESPONDENT-APPELLANT,No. 00-99003,00-99000,00-99003
• Parties: (9th Cir. 2001) WILLIAM CHARLES PAYTON,, v. JEANNE WOODFORD, ACTING WARDEN OF CALIFORNIA STATE PRISON AT SAN QUENTIN,WILLIAM CHARLES PAYTON,, v. JEANNE WOODFORD, ACTING WARDEN OF CALIFORNIA STATE PRISON AT SAN QUENTIN,,,
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 905

258 F.3d 905 (9th Cir. 2001)

WILLIAM CHARLES PAYTON, PETITIONER-APPELLEE, v. JEANNE WOODFORD, ACTING WARDEN OF CALIFORNIA STATE PRISON AT SAN QUENTIN, RESPONDENT-APPELLANT. WILLIAM CHARLES PAYTON, PETITIONER-APPELLANT, v. JEANNE WOODFORD, ACTING WARDEN OF CALIFORNIA STATE PRISON AT SAN QUENTIN, RESPONDENT-APPELLEE.

No. 00-99000,, No. 00-99003

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted May 10, 2001--Pasadena, California

Filed August 2, 2001

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Counsel Nancy L. Palmieri, Deputy Attorney General, San Diego, California, for the respondent-appellant/cross-appellee.

Rosalie L. Rakoff, Santa Monica, California, for the petitioner-appellee/cross-appellant.

Dean R. Gits, Santa Monica, California, for the petitioner-appellee/cross-appellant.

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

Before: Pamela Ann Rymer, Michael Daly Hawkins, and Ronald M. Gould, Circuit Judges.

Rymer, Circuit Judge

William Charles Payton was convicted in 1982 of the rape and murder of Pamela Montgomery, and the attempted murders of Patricia Pensinger and her ten-year-old son, Blaine. He was sentenced to death. The California Supreme Court affirmed. People v. Payton, 3 Cal.4th 1050, 13 Cal. Rptr. 2d 526 (1992). It found that the prosecutor made an incorrect argument in the penalty phase about "factor (k),"¹ -that factor (k) does not refer to anything after the fact or later than the crime -but held that the error was harmless as it was not reasonably likely the jurors believed the law required them to disregard Payton's mitigating evidence. Payton filed a petition for habeas corpus in federal district court, which granted the writ on his claim of prosecutorial misconduct. The district court held that the penalty phase was rendered fundamentally unfair by the prosecutor's improper argument regarding the jury's consideration of mitigating evidence. Accordingly, the sentence of death was vacated until the state granted a new penalty trial and, if no retrial was held, Payton was to be sentenced to life imprisonment without the possibility of parole. His convictions for murder, rape, and attempted murder were left standing. The state appealed. We conclude that Payton's due process rights were not violated. It is not reasonably likely that the jury was misled into disregarding Payton's evidence because the prosecutor's incorrect statement was cured by the trial court's admonishment, the prosecutor's discussion of the substance of Payton's mitigating evidence, his concession that there was at least some merit to it, defense counsel's broad reading of factor (k), and the court's instruction that the jury "shall" consider "all" the evidence -which necessarily included Payton's evidence in mitigation.

Payton cross-appealed. He sought a certificate of probable cause (CPC) on January 14, 2000, which the district court granted on February 16. However, on April 26, the Supreme Court held in Slack v. McDaniel, 529 U.S. 473 (2000), that the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) governs any habeas appeal commenced after AEDPA's effective date, April 24, 1996, without regard to when the petition was filed. Consequently, Payton needs a certificate of appealability (COA) rather than a CPC for this court to have jurisdiction. Because Payton could not have known that a COA rather than a CPC was required,"we treat the petitioner's notice of appeal as a request for a COA on the issues raised in the briefs, and we grant a COA on those issues as to which the petitioner has made the requisite `substantial showing of the denial of a constitutional right.' " Morris v. Woodford, 229 F.3d 775, 779 (9th Cir. 2000) (quoting Schell v. Witek, 218 F.3d 1017, 1021 n.4 (9th Cir. 2000)). We believe Payton has made such a showing and so grant a COA on the issues raised in his opening brief, but we agree with the district court on the merits that Payton's conviction must stand.

I.

Payton was a former boarder at Patricia Pensinger's home. Around 4:00 A.M. on May 26, 1980, he entered the house through the front door and went to the kitchen. Pensinger was in the kitchen, and Payton told her that he had car troubles. Pensinger offered Payton some beer and the two talked until about 4:50 A.M. Montgomery came to the kitchen to get a drink of water and Pensinger introduced the two, although Montgomery left the kitchen shortly afterwards.

Payton asked if he could sleep on the couch in the living room, and Pensinger said okay. She then went to her bedroom, where Blaine was already asleep.

Pensinger was awaken by blows on her back. When she rolled over, Payton jumped on her and repeatedly stabbed her with a knife, primarily on her face and neck. The attack woke her son who was also stabbed when he tried to help his mother. Payton attempted to stab Pensinger in the abdomen but the knife would not penetrate because the blade had bent. Payton then left the bedroom yelling, "I'm leaving now."

Pensinger and her son tried to escape through the kitchen. But Payton was there. He grabbed another knife and began stabbing Pensinger and her son again, repeatedly. Eventually, others responded to the noise. Payton dropped the second knife and fled.

Both Patricia and Blaine Pensinger survived. In total, Patricia Pensinger suffered 40 stab wounds to her face, neck, back, and chest. Blaine Pensinger suffered 23 stab wounds to his face, neck, and back.

After the police arrived, Montgomery's body was discovered. Montgomery was found lying in a pool of blood on her bedroom floor, wearing only a nightgown that was open in the front. There was blood in the bedroom as well as a nearby bathroom. Underwear was found entwined in a pair of shorts in Montgomery's bed. Saliva and semen that was consistent with Payton's were found on the victim's breast and vaginal area. Montgomery had been stabbed 12 times; 6 of the stab wounds were in a line from Montgomery's stomach to her groin. She died approximately 15 to 30 minutes before she was found.

Payton arrived home at 6:15 A.M. His wife observed that his clothes, face, and hands were covered with blood (some of which was still wet). He had a cut on his index finger, and when he removed his clothes there was a "lot" of blood on his genital area as well as his legs and chest (but not on his pants). He also had fingernail scratches on his back. Payton fled, and was eventually arrested in Florida.

Payton was charged with the first degree murder, Cal. Penal Code §§ 187, and rape, Cal. Penal Code§§ 261(2), of Pamela Montgomery, and the attempted murders of Patricia Pensinger and Blaine Pensinger, Cal. Penal Code§§§§ 664 and 187. Trial counsel, James Merwin, was appointed on December 5, 1980. He and his investigator interviewed Payton's family (who basically painted the picture of an intelligent person raised in a middle-class background), and a couple of people who were at the party where Payton was before the murders (who indicated that he had been drinking and had apparently tried to assault two women sexually while there).

Merwin inherited the opinion of a mental health expert (Dr. Sheffner) retained by his predecessor that recounted Payton's past problems with sexual desires and concluded that Payton's claims of altered state of consciousness did not appear credible. Dr. Sheffner also opined that Payton's claims of amnesia or blackouts do not make medical sense or fit into any psychiatric-neurological pattern, that there was no evidence that Payton was in a psychotic state, and that his complaints of sleepwalking don't make sense. Merwin then retained Dr. E.W. Klatte, who interviewed Payton October 17, 1981 and reviewed several hundred pages of documentary material. Dr. Klatte discovered that Payton had consumed alcohol and drugs prior to the attack and had been looking for a woman to have "sexual relations" with. Payton admitted that some of the information he had given out to others was a lie, that he had problems dealing with women and sex, and sometimes worried that he was violent. He mentioned an incident with a former girlfriend he had stabbed while she was sleeping. Payton also told Dr. Klatte that his parents were kind to him, spoiled him, spent considerable time with him, and did not mistreat him. Dr. Klatte's opinion was that Payton was intelligent, well-oriented, and without evidence of organic brain pathology; that he was not unconscious at the time of the incidents; and that his use of cocaine six weeks before would not have precipitated the violence. In sum, he did not lack substantial capacity to appreciate the criminality of his conduct. After receiving Dr. Klatte's report, Merwin sought the views of one other mental health expert, Dr. Edward Kaufman. He gave Dr. Kaufman the same documentary material and Dr. Klatte's evaluation. Dr. Kaufman did not interview Payton, but rendered an opinion that was consistent with Dr. Klatte's.

Meanwhile, in October or November of 1980, Payton told a fellow inmate, Alejandro Garcia, that he had raped and stabbed Montgomery because he had "this urge to kill." In the same time frame he also began talking about the attacks with Daniel Escalera, another inmate. Escalera was soon released but in late March, 1981 was re-incarcerated for violating probation. On April 3, Payton admitted to Escalera that he had a "severe problem" with women, that he wanted to "stab them and rape them," and that "all women on the street he seen was a potential victim, regardless of age or looks." Both Garcia and Escalera related what they had learned to the police. The prosecution disclosed their records (incomplete, as it turns out), and produced copies of their interviews. Merwin requested and obtained an evidentiary hearing pursuant to California Evidence Code §§ 402 to...