Richter v. Hickman, 06-15614.
| Decision Date | 10 August 2009 |
| Docket Number | No. 06-15614.,06-15614. |
| Citation | 578 F.3d 944 |
| Parties | Joshua RICHTER, Petitioner-Appellant, v. R.Q. HICKMAN, Warden; Cal A. Terhune; Ernie Roe, Respondents-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Cliff Gardner, Oakland, CA; Edward W. Swanson, Swanson & McNamara LLP, San Francisco, CA, for petitioner-appellant Joshua Richter.
Harry Joseph Colombo, Deputy Attorney General, John G. McLean, Supervising Deputy Attorney General, and Mark Anthony Johnson, 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, Senior District Judge, Presiding. D.C. No. CV-01-00643-JKS.
Before: ALEX KOZINSKI, Chief Judge, STEPHEN REINHARDT, DIARMUID F. O'SCANNLAIN, ANDREW J. KLEINFELD, BARRY G. SILVERMAN, KIM McLANE WARDLAW, RAYMOND C. FISHER, RICHARD A. PAEZ, JAY S. BYBEE, MILAN D. SMITH, JR. and SANDRA S. IKUTA, Circuit Judges.
Opinion by Judge REINHARDT; Dissent by Judge BYBEE
To ... not prepare is the greatest of
crimes; to be prepared beforehand for
any contingency is the greatest of virtues
—Sun Tzu, The Art of War 83
(Samuel B. Griffith trans., Oxford
University Press 1963)
At the heart of an effective defense is an adequate investigation. Without sufficient investigation, a defense attorney, no matter how intelligent or persuasive in court, renders deficient performance and jeopardizes his client's defense.
Here, counsel did not meet his basic obligation to his client. Much was riding on his performance in this case: his client, Joshua Richter, was accused of murder, among other charges, and faced life imprisonment without parole. Yet, counsel failed to undertake the most elementary task that a responsible defense attorney would perform in a case of this nature, and consequently provided representation that fell well below a reasonable standard of professional competence. Although it was apparent that an issue critical to the outcome could best be resolved through the presentation of forensic evidence, counsel failed at each stage of the case to consult with a forensic expert of any type and thus failed to conduct the rudimentary investigation necessary in order to (1) decide upon the nature of the defense to be presented, (2) determine before trial what evidence he should offer, (3) prepare in advance how to counter damaging expert testimony that might be introduced by the prosecution, and (4) effectively cross-examine and rebut the prosecution's expert witnesses once they did testify during the course of the trial. There was in fact no strategic reason for counsel's failure to do so. As it turned out, these repeated failures to investigate were prejudicial: available forensic testimony would have contradicted the prosecution's explanation of the events that transpired and would have strongly supported the defense's version.
We conclude that, singly and collectively, counsel's failures rise to the level of ineffective assistance of counsel under the Sixth Amendment. There is nothing novel about our holding. Rather, we arrive at the only reasonable conclusion that can be reached, given the facts of the case and the well-established applicable law. We therefore reverse the district court and remand with directions to grant the writ of habeas corpus.
On December 18, 1995, a California jury convicted Joshua Richter ("Richter") and Christian Branscombe ("Branscombe") of the murder of Patrick Klein ("Klein") and attempted murder of Joshua "Gunner" Johnson ("Johnson"), as well as of burglary and robbery. Both young men were sentenced to life in prison without the possibility of parole. Richter and Branscombe were each twenty at the time of the offense and twenty-one years old at the time of conviction.
Almost precisely a year prior to the date of their conviction, on the evening of December 19, 1994, Richter and Branscombe drove to the Sacramento home of Johnson, a close friend of Richter's and an acquaintance of Branscombe's. The two young men had earlier completed their final day of work at a nearby Christmas tree lot, and Richter's boss had paid him approximately $800 in cash. He had also given him the wages owed to Johnson's housemate, Tony,1 a friend and co-worker who had failed to show up for work that day. Richter and Branscombe drove to Johnson's house so that Richter could pay Johnson some money he owed him out of his newly received earnings, deliver Tony's wages, and buy some "head stash" from Johnson, who was a major marijuana dealer.
When Richter and Branscombe arrived at the house, no one was home. They waited in the driveway, in Richter's girlfriend's car, until Johnson returned shortly thereafter, accompanied by Klein and another friend. Johnson did not immediately recognize Richter's girlfriend's car, and approached it with his .380 caliber M-12 handgun loaded and drawn. Upon seeing the defendants, Johnson put the weapon away. Johnson, Klein, Richter, and Branscombe went into the house, where they socialized for several hours. While they talked and Johnson, Klein, and Richter smoked marijuana, Branscombe cleaned a .32 caliber handgun that he had recently acquired from Johnson as a means of protection when he worked late nights at the tree lot. Richter and Branscombe left Johnson's residence shortly after 2:30 a.m. Klein decided to spend the night.
At trial, Richter and the State of California ("the State") presented dramatically different accounts of the ensuing events. According to the State, after Richter and Branscombe left, Johnson went to sleep in his bedroom and Klein lay down on the couch in the living room. Johnson awoke somewhere between 4:00 and 5:00 in the morning to find Richter and Branscombe in his bedroom, in the act of stealing his gun-safe, which he said was located in his bedroom closet. Branscombe then twice shot Johnson, who fell back wounded onto the bed. Soon thereafter, Johnson heard gunshots coming from the living room. After Richter and Branscombe left the house, Johnson got out of bed, found Klein lying on the living room couch bleeding, and discovered that his gun-safe, his .380 caliber M-12, and a hip sack that contained $6000 in cash were all missing.
Richter told a markedly different story. He testified that after leaving Johnson's house around 2:30, he and Branscombe decided to go back to the Christmas tree lot where they had worked. Their boss had instructed them to clear out their belongings from the trailer on the property before morning, and, not wanting to go to sleep for a few hours only to wake up early to finish the job, he and Branscombe got his pick-up truck and cleared out the trailer, including the belongings of Johnson's housemate, Tony. The two young men then returned to Johnson's residence around 4:30 a.m., in order to see whether Tony had come home and to drop off his belongings, along with his pay. Branscombe also intended to return the .32 caliber handgun to Johnson if he was still awake. Richter stayed in his truck in Johnson's driveway, smoking a cigarette, while Branscombe knocked on the door and was let into the house by Klein.
Shortly thereafter, Richter heard gunshots. He headed toward the house and heard yelling and more gunshots as he approached the front door. He found Klein lying in the doorway to Johnson's bedroom, saw Johnson lying twisted on the bed, and found Branscombe "totally freaked out," standing in the middle of the bedroom holding a firearm, and shouting, "They tried to kill me." According to the defense, Johnson, who had earlier been drinking and smoking marijuana, had drawn his .380 caliber M-12 and fired at Branscombe when he entered the room. After firing one bullet, the gun—which Johnson had attempted to modify from a semi-automatic to a fully automatic—jammed, and Johnson threw it down. He then took out a second handgun—apparently a .22 caliber—that he kept under his mattress and shot at Branscombe, but hit Klein instead. Branscombe then fired three shots with the .32 caliber handgun and hit both Klein and Johnson.2 After Richter arrived inside the house, Branscombe picked up Johnson's M-12 from the floor and ran outside to try to start the truck. Richter panicked and ran back out to the truck as well, and the two young men drove away.
Sometime after the shootings, Johnson made a 911 call to the police.3 Johnson testified that, before the police arrived six minutes later, 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. When the police arrived, they encountered a "hysterical" Johnson, who had blood on his cheeks, shirt, hands and right shoulder. The police found Klein lying on top of a sleeping bag on the living room couch, near death.
The initial investigation of the scene uncovered two spent .32 casings in the bedroom, as well as blood on the bed where Johnson said he had been shot. There was a large pool of blood in the doorway to Johnson's bedroom, where Richter testified that Klein had been shot. The pool had been disturbed by a foot stomp or some other external force. Investigators determined that Klein had been shot twice, by a .22 and a .32 caliber bullet. They found a spent .32 and a spent .22 casing in the living room near the couch where Klein was lying, although the prosecution's expert testified at trial that it is impossible to determine with certainty how casings end up where they do.
A significant amount of blood was found throughout the house. Investigators photographed and videotaped the scene, collected a few blood swabs, and took some fingerprints, but primarily determined that the scene appeared to be consistent with Johnson's account of what had happened and did not pursue an in-depth forensic investigation. The police took a sample of blood from the door molding above the...
To continue reading
Request your trial
-
BARCO v. Tilton
...919 (9th Cir.2002) (same), cert. dismissed, 538 U.S. 919, 123 S.Ct. 1571, 155 L.Ed.2d 308 (2003); see also, e.g., Richter v. Hickman, 578 F.3d 944, 952-53 (9th Cir.2009) (finding counsel ineffective when he failed to conduct investigation into forensic evidence that would have contradicted ......
-
Elmore v. Ozmint
...another person—in his case, a drug dealer named Joshua Johnson—manipulated the physical evidence against him. See Richter v. Hickman, 578 F.3d 944, 976 (9th Cir.2009) (en banc). Like Elmore, Richter sought relief from the state court system following his conviction on the basis of Stricklan......
-
Ayala v. Wong
...before rejected the approach to habeas review that the panel majority adopts here. In two prior habeas opinions, Richter v. Hickman, 578 F.3d 944 (9th Cir.2009) (en banc), and Williams v. Cavazos, 646 F.3d 626 (9th Cir.2011), we brushed aside the deference we owe a state court's adjudicatio......
-
Ayala v. Wong
...questionnaires likely did not prevent Ayala from prevailing on his Batson claim, then we must grant the writ.”). 8.See Richter v. Hickman, 578 F.3d 944 (9th Cir.2009); Williams v. Cavazos, 646 F.3d 626 (9th Cir.2011). 9. The panel had reasoned: It is obvious, not “theoretical” or “speculat[......
-
Harrington's wake: unanswered questions on AEDPA's application to summary dispositions.
...circuit courts have moved toward more deferential review. See infra notes 65-68 and accompanying text. (12.) 131 S. Ct. 770(2011). (13.) 578 F.3d 944 (9th Cir. 2009) (en (14.) Id. at 969. (15.) See id. at 951 n.5. (16.) Joint Appendix at 129, Harrington, 131 S. Ct. 770 (No. 09-587), 2010 WL......
-
Table of cases
...§11:101 Richfield Hotel Management, Inc. v. Superior Court (Riddell) (1994) 22 Cal.App.4th 222, §12:39 Richter v. Hickman (9th Cir. 2009) 578 F.3d 944, §9:99.2 Rigney v. Edgar , 135 Ill.App.3d 893 (1985), §13:13.2 Riley v. California, 573 U.S. 373, 382 (2014), §§7:66.5(b)(v)(2), 7:71 Ring v......
-
Trial defense of dui in California
...failed to make proper objections. §9:99.3 Ineffective Assistance of Counsel—Federal Habeas Corpus Richter v. Hickman (9th Cir. 2009) 578 F.3d 944 held that Strickland obligates defense attorneys to make reasonable investigations before settling on a trial strategy, or to conduct sufficient ......