Ross v. Davis
Decision Date | 25 March 2022 |
Docket Number | No. 17-99000,17-99000 |
Citation | 29 F.4th 1028 |
Parties | Craig Anthony ROSS, Petitioner-Appellant, v. Ronald DAVIS, Warden, California State Prison at San Quentin, Respondent-Appellee. |
Court | U.S. Court of Appeals — Ninth Circuit |
Norman D. James (argued), Law Office of Norman D. James, Hamilton, Montana; Jerry L. Newton (argued), Carmel, California; for Petitioner-Appellant.
Steven E. Mercer (argued) and A. Scott Hayward, Deputy Attorneys General; James William Bilderback II, Supervising Deputy Attorney General; Lance E. Winters and Ronald S. Mathias, Senior Assistant Attorneys General; Gerald A. Engler, Chief Assistant Attorney General; Rob Bonta, Attorney General; Office of the Attorney General, Los Angeles, California; for Defendant-Appellant.
Before: Mary H. Murguia, Chief Judge, and Kim McLane Wardlaw and Consuelo M. Callahan, Circuit Judges.
Over forty years ago, Craig Anthony Ross participated in three brutal gang-involved home invasion robberies in which three people were murdered. In 1982, a jury convicted Ross of three counts of murder, five counts of robbery, two counts of burglary, and one count of rape in concert. The jury also found that during each offense he was armed with a firearm, and, as to each count of murder, found special circumstances of robbery-murder, burglary-murder, and multiple murder. On one of the murder counts, the jury found a rape-murder special circumstance. At the penalty phase, the jury returned a verdict of death. Ross now appeals from the denial of his federal petition for a writ of habeas corpus.
Two penalty phase claims are before us. First, Ross claims that an erroneous aiding and abetting instruction allowed the jury to find him guilty of the first-degree murder counts without making the finding that he had the intent to kill, and thus the imposition of the death penalty violated the Eighth Amendment. See Enmund v. Florida , 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982). We conclude that the California Supreme Court on direct appeal reasonably rejected this claim. The state court reasonably concluded that the instructions were adequate for the jury to make the requisite culpability finding, especially in light of the exception to the rule of Enmund found in Tison v. Arizona , 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987) and our decision in Tapia v. Roe , 189 F.3d 1052 (9th Cir. 1999).
Second, Ross claims that his trial counsel's failure to investigate and present then available mitigation evidence at the penalty phase was ineffective assistance of counsel in violation of the Sixth Amendment under Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Though we agree with the district court that counsel's failure to perform was deficient, given the entirety of the evidence before the jury, Ross's disruptive conduct in front of the jury and the sure-to-be-admitted rebuttal and impeachment evidence that would follow introduction of the mitigation evidence, the California Supreme Court reasonably concluded that Ross did not show a reasonable probability that the result would have been different but for counsel's unprofessional errors.
Throughout his murder trial, Ross was represented by lead counsel Gerald D. Lenoir, an experienced capital defense attorney. Lenoir was assisted by co-counsel H. Elizabeth Harris, who had tried a single prior capital case. The California Supreme Court in its 1995 opinion in Ross's direct appeal,1 recited the facts related to Ross's guilt, People v. Champion ,2 9 Cal. 4th 879, 39 Cal.Rptr.2d 547, 891 P.2d 93 (1995), modified on denial of reh'g (June 1, 1995), as follows:
or a gap between his teeth. She paid closer attention to this man because she had seen him once in Helen Keller Park, which was just across the street.
Mercie Hassan returned home at about 3:30 p.m. The house had been ransacked. Part of the lunch she had prepared for Bobby and Eric was on the floor, along with wrapping paper from the children's Christmas presents. Several of the presents were missing, as were some colored pillowcases and a .357-caliber Ruger Security Six revolver. Police, called to the scene, found the bodies of Bobby and Eric Hassan in the bedroom, lying on the bed. Each had been shot once in the head. Bobby's hands were tied behind his back, and three rings and a necklace he customarily wore were missing.
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