Richter v. Hickman

• Decision Date: 09 April 2008
• Docket Number: No. 06-15614.,No. 06-15776.,06-15614.,06-15776.
• Citation: 521 F.3d 1222
• Parties: Joshua RICHTER, Petitioner-Appellant, v. R.Q. HICKMAN, Warden; Cal A. Terhune; Ernie Roe, Respondents-Appellees. Christian Branscombe, Petitioner-Appellant, v. R.Q. Hickman, Warden; Cal A. Terhune; Ernie Roe, Respondents-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

521 F.3d 1222

Joshua RICHTER, Petitioner-Appellant, v. R.Q. HICKMAN, Warden; Cal A. Terhune; Ernie Roe, Respondents-Appellees.

Christian Branscombe, Petitioner-Appellant, v. R.Q. Hickman, Warden; Cal A. Terhune; Ernie Roe, Respondents-Appellees.

No. 06-15614.

No. 06-15776.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 15, 2007.

Filed April 9, 2008.

Cliff Gardner, Oakland, CA, for petitioner-appellant Joshua Richter.

Ann C. McClintock, Assistant Federal Defender, Sacramento, CA, for petitioner-appellant Christian Branscombe.

Harry Joseph Colombo, Deputy Attorney General, and John G. McLean, Supervising Deputy Attorney General, Sacramento, CA, for the respondents-appellees.

Appeal from the United States District Court for the Eastern District of California; James K. Singleton, Chief District Judge, Presiding. D.C. No. CV-01-00643-JKS.

Before: ROBERT R. BEEZER, STEPHEN S. TROTT, and N. RANDY SMITH, Circuit Judges.

BEEZER, Circuit Judge:

Appellants in these two consolidated cases were jointly convicted of murder, attempted murder, robbery and burglary in California state court. They were sentenced to life in prison without the possibility of parole. In the present action, they appeal the district court's denial of writs of habeas corpus. Appellants allege that they received ineffective assistance of counsel at trial in violation of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Appellants further allege that the prosecution suppressed exculpatory evidence at trial in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Appellant Christian Branscombe ("Branscombe") argues that his trial counsel failed to engage in "meaningful adversarial testing" in violation of United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). Appellant Joshua Richter ("Richter") alleges that the trial court violated his Eighth Amendment right to a jury trial and Fourteenth Amendment right to due process by providing an incorrect or inaccurate answer to a question of law posed by the jury to the trial court. We affirm the district court's denial of appellants' habeas petitions.

I

Joshua Gunner Johnson ("Johnson"), a friend of Richter and acquaintance of Branscombe, lived in a house in Sacramento. On the evening of December 19, 1994, Richter and Branscombe drove to Johnson's house so that Richter could pay Johnson some money he owed him and buy some marijuana from him. Richter and Branscombe were waiting in their car in Johnson's driveway when Johnson returned home, accompanied by. Patrick Klein ("Klein") and another individual. Johnson did not recognize the car, and approached the car with his .380 caliber Mac-12 handgun drawn. Upon recognizing the petitioners, Johnson put the Mac-12 away. Johnson, Klein, Richter and Branscombe went into the house, where they socialized for several hours. While they talked, Branscombe cleaned a .32 caliber handgun that he had recently acquired from either Johnson or Johnson's housemate. Richter and Branscombe left Johnson's residence shortly after 2:30 a.m. on December 20, 1994. Klein decided to stay the night.

At trial, appellants and appellee State of California ("the State") presented different accounts of the ensuing events. The State presented evidence that after Richter and Branscombe left, Johnson went to sleep in his bedroom and Klein lay down on the couch in the living room. Johnson woke up early in the morning to find Richter and Branscombe in his bedroom, likely attempting to steal Johnson's gun safe, which was allegedly located in Johnson's bedroom closet. Branscombe shot Johnson, and Johnson later heard gunshots coming from another room. Johnson found Klein lying on the couch bleeding and discovered that his Mac-12 was missing, along with a hip sack that contained $6000 in cash.

Richter and Branscombe presented evidence that they returned to Johnson's residence around 4:00 a.m. so they could give Johnson's housemate certain belongings and wages, and so that Branscombe could return the .32 caliber handgun. Richter stayed in his truck while Branscombe was let into the house by Klein. Shortly thereafter, Richter heard gunshots. He headed toward the house and heard more yelling and gunshots as he approached the front door. Richter saw Klein lying in the doorway to Johnson's bedroom, and found Branscombe "totally freaked out" standing in the middle of the bedroom holding a firearm. Branscombe told Richter that Johnson and Klein had fired at him and tried to kill him. Branscombe picked up the Mac-12 from the floor and told Richter that Johnson or Klein had fired it and had tried to shoot him with it. Branscombe then ran outside and tried to start the truck. Richter panicked and ran back out to the truck. Richter and Branscombe drove away.

Soon after the shootings, Johnson made a 911 call to police. Before police arrived six minutes later, Johnson testified that he made a phone call to his girlfriend's father and took two trips through the house and into the yard to hide his marijuana plants. The police arrived at the house six minutes after Johnson's 911 call. Upon arrival, they encountered a "hysterical" Johnson, who had blood on his cheeks, shirt, hands and right shoulder. The police saw Klein lying on top of a sleeping bag on the living room couch, near death.

A subsequent investigation found two spent .32 casings in the bedroom where Johnson said he had been shot. The investigators found blood on the bed where Johnson said he had been shot, and a pool of blood in the doorway to Johnson's bedroom. Investigators determined that Klein had been shot twice, by a .22 and a .32 caliber bullet. They also found a spent .32 and a spent .22 casing in the living room near the couch where Klein was lying. Later, while searching Richter's residence, investigators found Johnson's gun safe haphazardly laying on its back. Investigators found a .380 casing in Richter's vehicle which they determined had been ejected from Johnson's Mac-12.

The weapons used to kill Klein and injure Johnson were never found, but investigators examined the bullets fired and casings ejected at the scene. The .22 bullet removed from Klein was a CCI Stinger. The bullet had markings consistent with being ejected from a High Standard Sport King, although investigators could not rule out the possibility that the bullet had been fired from a different .22 caliber firearm. Investigators also found a CCI Stinger brand .22 caliber casing in Johnson's living room, near the couch where Klein was found by the police. The casing had markings consistent with (but not exclusive to) having been fired from a High Standard Sport King. While searching Richter's residence, investigators found a magazine loaded with CCI Stinger brand .22 cartridges. The magazine was identical in size and shape to High Standard magazines designed specifically for a Sport King. An investigator successfully fired a laboratory exemplar High Standard Sport King using the magazine found in Richter's residence.

A California Superior Court jury found Richter and Branscombe guilty of all charges after a trial lasting over three weeks. Following their convictions, Richter and Branscombe appealed to the California Court of Appeal, which affirmed the judgments of the trial court. Appellants filed a petition for review in the Supreme Court of California, which was denied. Appellants sought writs of habeas corpus in the California Supreme Court, which denied their petitions. Appellants timely petitioned for writs of habeas corpus in the United States District Court for the Eastern District of California, which denied the petitions. Appellants sought certificates of appealability from this court, which were granted.

II

Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), we may not grant a habeas corpus petition unless the state court decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,"¹ or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). When reviewing a state court's summary denial of a habeas petition, we "look through" the summary disposition to the last reasoned state court decision. Plascencia v. Alameida, 467 F.3d 1190, 1198 (9th Cir.2006). When no state court has explained its reasoning on a particular claim, we conduct "an independent review of the record to determine whether the state court's decision was objectively unreasonable." Sass v. Cal. Bd. of Prison Terms, 461 F.3d 1123, 1127 (9th Cir.2006).

We review a district court's decision to grant or deny a writ of habeas corpus de novo. Lewis v. Mayle, 391 F.3d 989, 995 (9th Cir.2004). We review the district court's findings of fact for clear error. Bonin v. Calderon, 59 F.3d 815, 823(9th Cir.1995).

III

Appellants argue that they were denied effective assistance of trial counsel as guaranteed by the Sixth Amendment. Under Strickland, petitioners claiming ineffective assistance of counsel must show both cause and prejudice to prevail on their claim. 466 U.S. at 687, 104 S.Ct. 2052.

To show cause, petitioners must demonstrate that counsel's performance at trial was objectively unreasonable, i.e., "outside the wide range of professionally competent assistance." Id. at 688, 690, 104 S.Ct. 2052. Judicial scrutiny of counsel's performance "must be highly deferential." Id. at 689, 104 S.Ct. 2052. Counsel is "strongly presumed to have rendered adequate assistance." Id. at 690, 104 S.Ct. 2052. Courts reviewing counsel's performance "evaluate the conduct from counsel's perspective at the time," to "eliminate the distorting effects of hindsight." Id. at 689, 104 S.Ct. 2052. Strategic choices made by counsel after thorough investigation are "virtually unchallengeable." Id. at 690,...