Ross v. Davis

Decision Date25 March 2022
Docket NumberNo. 17-99000,17-99000
Citation29 F.4th 1028
Parties Craig Anthony ROSS, Petitioner-Appellant, v. Ronald DAVIS, Warden, California State Prison at San Quentin, Respondent-Appellee.
CourtU.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.

WARDLAW, Circuit Judge:

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.

I.

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:

1. Murders of Bobby Hassan and His Son, Eric
On the morning of December 12, 1980, Mercie Hassan left her home at 849 West 126th Street, Los Angeles, to go to work. Residing with her were her husband, Bobby Hassan (an unemployed carpenter who sold marijuana and sometimes cocaine), and their four children. Mercie spoke to Bobby on the telephone between 11:00 and 11:30 that morning. Bobby normally picked up their 14-year-old son, Eric, from school at noon and brought him home for lunch.
Sometime around noon, Elizabeth Moncrief, a nurse working for an elderly woman across the street from the Hassan residence, saw Bobby and Eric return home. Half an hour later, she saw a large gold or cream-colored Cadillac containing 4 Black males, ages 19–25, parked in front of the Hassan home. Moncrief went outside and took a close look at the car. About five minutes later, she saw two of the men get out of the car and knock at the Hassans' door. There was a struggle at the door, and the two men entered. The other two men then got out of the car and entered the house, and someone closed the curtains in the Hassan residence.
Later, Moncrief saw all four men leave the house. One was holding a pink pillowcase with something in it; the others were carrying paper bags containing unknown items. Moncrief was able to get a particularly good look at the last man who left the house, a tall man with heavy lips, a scar on his face, and either a chipped tooth

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.

Defendant Champion was arrested on January 9, 1981. When arrested, he was wearing a yellow metal ring with white stones and a gold chain necklace that contained a charm bearing half of a king-of-hearts playing card. Mercie Hassan identified the ring and charm as belonging to her husband, Bobby. Latent fingerprints lifted from the Christmas

wrapping paper and from a white cardboard box matched defendant Ross's fingerprints.
[...]
A ballistics expert testified that Bobby Hassan was killed by a .357-caliber bullet with rifling characteristics; the latter are produced by the gun that fired the bullet, and were described by the expert as "six lands and grooves with a left hand twist." The expert also testified that most Colt revolvers produce these particular characteristics. The prosecution produced photographs, found in defendant Champion's home, showing each defendant holding a Colt revolver. [...]
2. The Murder of Michael Taylor
During the evening of December 27, 1980, three men came to the door of Cora Taylor's apartment at 11810 ½ Vermont Avenue, not far from the Hassan home. Residing with Cora were her son Michael (who sold marijuana) and her daughter Mary. The men, one of whom Cora identified at trial as defendant Ross, walked into the living room and asked to speak to Michael. When Michael and Mary came out of the next room, accompanied by William Birdsong, a friend who was visiting, one of the men, whom Cora and Mary later identified as Evan Malett, grabbed Birdsong. A struggle ensued, which ended when Malett drew a gun and ordered Cora, Mary, Michael, and Birdsong to sit on the bed. Malett then demanded money and drugs. When Mary said they did not have any, one of the three men hit her in the jaw with his fist. The men then ordered the Taylors and Birdsong to lie face down on the bed, opened Cora's purse, and ransacked the premises. While the three robbers were rummaging through the apartment, a fourth man (apparently a lookout) came to the door but did not enter.
At Cora's urging, Michael told the robbers that there was money in a box in the kitchen. At that point one of the men, whom Mary later identified as defendant Ross, grabbed Mary by the hair and forced her to go into the bathroom, where he raped her. He then left the bathroom, returning moments later to rape Mary again. Thereafter, Malett entered the bathroom and unsuccessfully tried to rape Mary.
The three men then ordered Birdsong and Cora to join Mary in the bathroom. A short time later, Cora and Mary heard a shot. After a few minutes, they left the bathroom and found Michael in the living room, dead. A prosecution expert testified that Michael had died from a single shot from a high-powered weapon (such as a .357 magnum), fired at close range. The agent also testified that the gun used to kill Bobby Hassan could not have been the murder weapon, but that the bullet could have been fired by the .357-caliber Ruger stolen from the Hassan home.
Missing from the Taylor's apartment was an 8-track tape player. Also missing was a Christmas present—a photo album—which had been taken out of its wrapping.
Later that night, shortly after midnight, Los Angeles County Deputy Sheriff Ted Naimy saw a brown Buick automobile that contained four Black males and did not have its headlights turned on in the neighborhood where Michael Taylor had been murdered. As the Buick pulled alongside of him, Deputy Naimy and his partner ordered it to stop. Instead, the car sped away. As the deputies pursued the Buick, it went out of control, struck a curb, and came to a halt. Its four occupants jumped out of the car and ran. Inside the car, the deputy found the 8-track tape player stolen from the Taylor apartment and the .357-caliber Ruger revolver stolen from the Hassan home. The gun contained two live rounds and an empty shell casing, and smelled as if it had recently been fired. Under the car, Deputy Naimy found the photograph album stolen from the Taylors.
Police searched the neighborhood for the occupants of the Buick. They found Evan Malett hiding in a backyard of a nearby house, in which defenda
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4 cases
  • Rangel v. Broomfield
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • August 21, 2023
    ...are the keys to effective representation of counsel.” United States v. Tucker, 716 F.2d 576, 581 (9th Cir. 1983); see also Ross v. Davis, 29 F.4th 1028, 1053 (9th Cir. 2022) (“[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular inves......
  • Holt v. Smith
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • April 26, 2023
    ...are the keys to effective representation of counsel." United States v. Tucker, 716 F.2d 576, 581 (9th Cir. 1983); see also Ross v. Davis, 29 F.4th 1028, 1053 (9th Cir. 2022) ("[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular inves......
  • Mitchell v. Martel
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • July 11, 2022
    ...and so there was “no reversible error when the jury instructions are considered ‘as a whole'”) (citation omitted); Ross v. Davis, 29 F.4th 1028, 1045 (9th Cir. 2022) (in capital case, state court's determination that erroneous aider or abettor instruction was harmless was not unreasonable b......
  • Baus v. Haynes
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Western District of Washington)
    • June 17, 2022
    ...court's review is “‘limited to the record that was before the state court that adjudicated the claim on the merits, '” Ross v. Davis, 29 F.4th 1028, 1042 (9th Cir. 2022) (quoting Cullen v. Pinholster, 563 U.S. 170, 181 (2011)); therefore, this Court cannot consider the new evidence. Second,......

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