Randolph v. People of the State of Cal.
| Decision Date | 19 August 2004 |
| Docket Number | No. 03-16064.,03-16064. |
| Citation | 380 F.3d 1133 |
| Parties | Willis RANDOLPH, Petitioner-Appellant, v. PEOPLE OF THE STATE OF CALIFORNIA; Attorney General of the State of California; James Hamlet, Warden, Respondents-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Suzanne Adele Luban, Oakland, CA, for the petitioner-appellant.
Janis Shank McLean, Office of the California Attorney General, Sacramento, CA, for the respondents-appellees.
Appeal from the United States District Court for the Eastern District of California; Robert E. Coyle, Senior Judge, Presiding. D.C. No. CV-93-05604-REC.
Before: T.G. NELSON, W. FLETCHER, and BERZON, Circuit Judges.
Petitioner Willis Randolph appeals the district court's denial of his petition for a writ of habeas corpus challenging his 1986 state court conviction for murder. We hold that if the State places a cooperating informant in a jail cell with a defendant whose right to counsel has attached, and if the informant then makes a successful effort to stimulate a conversation with the defendant about the crime charged, the State thereby violates the defendant's Sixth Amendment rights under Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). Because the district court failed to make proper factual findings, we vacate the district court's denial of Randolph's Massiah claim and remand for factfinding. We do not decide the part of Randolph's claim under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), that depends on the district court's finding of fact necessary for the Massiah claim. We affirm the district court's denial of Randolph's other claims.
Petitioner Randolph is currently serving a life sentence for his conviction for the murder of 10-year-old Lamont Collins on June 24, 1981. The police initially suspected Lamont's father, who had expressed unhappiness at paying child support and had threatened Lamont's mother. Police, however, were unable to discover sufficient evidence of the father's involvement to justify bringing charges against him. Several years later, Randall McKinney was interviewed in connection with another homicide. During the interview, he stated that he had seen petitioner Randolph near the scene of the crime at the time of the killing. McKinney claimed that he had not previously come forward because he believed that Randolph had already been convicted of the killing. Soon after McKinney's interview with the police, Randolph was arrested and charged with Lamont's murder.
Randolph is a developmentally disabled African-American with an IQ of 59. The prosecution's theory of the case was that Lamont's father had paid Randolph to murder Lamont. Randolph was tried twice. At his first trial, the evidence against him consisted primarily of McKinney's testimony that he had seen Randolph, whom he had known since childhood, near the scene of the crime looking into an open car trunk, and that Randolph's car matched the description of a car several witnesses had reported seeing near the murder scene.
Prior to the start of his first trial, at which the State sought the death penalty, Randolph moved to set aside the jury panel based on the fact that there were lower percentages of African-Americans and Hispanics in the venire than their respective percentages in the general population. Randolph also moved to change venue, arguing that the media coverage of the murder and his subsequent arrest so tainted the jury pool as to make a fair trial all but impossible. The trial judge denied both motions. The first trial ended in a mistrial when the jury hung. Subsequent interviews revealed that eight of the jurors had voted to find Randolph guilty, and four had voted to acquit.
The State did not seek the death penalty at Randolph's second trial. Randolph again moved to set aside the jury panel and to change venue, and the trial judge again denied both motions. On retrial, the prosecutor had the benefit of two additional witnesses, both of whom were jailhouse informants. One informant was Jack Konkle, who gave somewhat conflicting and relatively insignificant testimony. The other was Ronnie Moore, who provided crucial testimony against Randolph.
Moore shared a jail cell with Randolph throughout most of Randolph's first trial and for several weeks after the judge declared a mistrial. Moore came to the attention of prosecutors when he gave them a letter asking for leniency and mentioning that he was Randolph's cellmate. Moore's defense attorney, as well as prosecutors, interpreted Moore's letter as an offer to testify against Randolph. Moore met with Deputy District Attorney James Oppliger and Detective Pete Chavez several times to discuss his possible testimony against Randolph, as well as a plea deal relating to the crime for which Moore was being held. At some point, Moore told Oppliger and Chavez that Randolph had admitted to killing Lamont and had said that he was due to receive a lot of money. Moore also told the prosecution team that Randolph had known Lamont's father and had spoken highly of him, thus supporting the prosecution's theory that the father had hired Randolph to kill Lamont.
Prior to the start of the second trial, Randolph moved to exclude the testimony of Konkle and Moore. After hearing the proffered testimony of the two witnesses, the trial judge denied the motion. With the benefit of these additional witnesses, the State obtained a conviction for first degree murder. Randolph was sentenced to a prison term of 27 years to life.
After exhausting his state remedies, Randolph sought habeas corpus relief in federal district court. He argued, inter alia, that the jury venire was not representative of a cross-section of the community; that the trial judge's failure to change venue prior to the start of the second trial violated his Fourteenth Amendment right to due process; that the use of Moore's testimony violated his Sixth Amendment right to counsel; that the use of Moore's and Konkle's testimony violated due process; and that the prosecutor violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by failing to turn over information about Moore and Konkle. After a hearing, the magistrate judge issued findings and recommendations in which he recommended that the district court dismiss Randolph's petition on the merits. The district court agreed with the recommendation, adopted the magistrate's findings, and dismissed the petition. Randolph timely appealed.
We review the dismissal of a petition for writ of habeas corpus de novo. Beardslee v. Woodford, 358 F.3d 560, 568 (9th Cir.2004). Since Randolph's petition was filed prior to the effective date of the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), we apply pre-AEDPA law. Alcala v. Woodford, 334 F.3d 862, 868 (9th Cir.2003). We may grant relief only if the state court committed a constitutional error that "had substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)). The district court's finding of facts are reviewed for clear error. Turner v. Calderon, 281 F.3d 851, 864 (9th Cir.2002). Under pre-AEDPA law, "the factual findings of state courts are presumed to be correct, and may be set aside ... only if they are not fairly supported by the record." Purkett v. Elem, 514 U.S. 765, 769, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995) (internal citation and quotation marks omitted).
The Sixth Amendment right to a trial by jury includes a right to a jury venire that is "representative[of a] cross section of the community." Taylor v. Louisiana, 419 U.S. 522, 528, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). To establish a prima facie violation of that right, a defendant must show:
(1) that the group alleged to be excluded is a "distinctive" group in the community;
(2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and
(3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.
Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979).
Randolph relies, as he did at his second trial, on a study prepared by Dr. John Tinker. Dr. Tinker's study purported to show that there were relatively fewer African-Americans and Hispanics in the venire in the second trial than in the general population in Fresno County, the geographical area of the venire. African-Americans, Dr. Tinker found, represented 4.3 percent of the population in the county but constituted only 3.1 percent of the venire. Thus, there was a 1.2 percent absolute disparity. See United States v. Sanchez-Lopez, 879 F.2d 541, 547 (9th Cir.1989) (). For Hispanics, however, this disparity was much greater. While Hispanics made up 29.2 percent of the population in Fresno County, they made up only 13.8 percent of the venire, an absolute disparity of 15.4 percent.
Applying the first prong of the Duren test, it is clear that African-Americans and Hispanics are "distinctive groups." See United States v. Nelson, 137 F.3d 1094, 1101 (9th Cir.1998) (). It is equally clear that while the disparity in African-Americans is insufficient to satisfy the second prong of the Duren test, the disparity in Hispanics is sufficient. Compare United States v. Suttiswad, 696 F.2d 645, 649 (9th Cir.1982) (...
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