Visciotti v. Woodford

Decision Date24 April 2002
Docket NumberNo. 99-99031.,No. 99-99032.,99-99031.,99-99032.
Citation288 F.3d 1097
PartiesJohn Louis VISCIOTTI, Petitioner-Appellee-Cross-Appellant, v. Jeanne WOODFORD, Warden of California State Prison at San Quentin, Respondent-Appellant-Cross-Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

John T. Swan, Deputy Attorney General, San Diego, CA, for the respondent-appellant-appellee.

William H. Forman and Statia Peakheart, Deputy Federal, Public Defenders, Los Angeles, CA, for the petitioner-appellee-cross-appellant.

Appeal from the United States District Court for the Central District of California, Manuel Real, District Judge, Presiding. D.C. No. CV 97-04591-R.

Before: PREGERSON,TASHIMA, and BERZON, Circuit Judges.


PREGERSON, Circuit Judge, authored Sections I, II, and III-B, with which Judges TASHIMA and BERZON concur. TASHIMA, Circuit Judge, authored Section III-A, with which Judge BERZON concurs, and from which Judge PREGERSON dissents.

John Visciotti ("Visciotti"), a California state prisoner, was convicted of first degree murder, attempted murder, and robbery, and sentenced to death. After exhausting his claims in state court, Visciotti brought a federal habeas petition alleging, among other claims, ineffective assistance by his counsel during the guilt and penalty phases of his trial. The district court granted Visciotti's habeas petition as to his sentence but denied habeas relief as to his conviction. Warden Woodford appealed and Visciotti cross-appealed the district court's decision. We affirm the district court's decision in its entirety.1


The following events, as described by the California Supreme Court, led to Visciotti's prosecution and conviction.

[Visciotti] and Brian Hefner, both of whom had been employed as burglar alarm salesmen by Global Wholesalers in Garden Grove [California], and who shared a motel room, were fired by their employer on November 8, 1982. Because their final paychecks were insufficient to cover future rent, they devised a plan to rob fellow employees who were also to be paid on that date. The pair waited in the company parking lot until another group of employees, among whom were [Timothy] Dykstra and [Michael] Wolbert, returned from their shifts. They invited Dykstra and Wolbert to join them at a party which, they claimed, was to be held at the home of friends in the Anaheim Hills area.

Dykstra and Wolbert agreed to go to the party. They did not know [Visciotti] and Hefner well, however, and were cautious. They insisted on driving in Wolbert's car. They also removed most of their cash from their wallets and hid it behind the dashboard of their car. After leaving [Visciotti's] car at an apartment complex, the four drove to a remote area on Santiago Canyon Road where [Visciotti] asked Wolbert to stop so that defendant could relieve himself. It was then between 7 and 9 p.m.

All four men left the car, Dykstra getting out first to permit [Visciotti] to leave. After the other three men left the car, Wolbert saw a gun in [Visciotti's] waistband. Wolbert then left the car and when he next looked at [Visciotti] he saw that [Visciotti] and Dykstra were standing face-to-face about two feet apart, with [Visciotti] holding the gun pointed at Dykstra. [Visciotti] demanded the victims' wallets. Wolbert told [Visciotti] where the money was hidden. Dykstra and Wolbert then stayed on an embankment, several feet apart, while Hefner searched for the money.

[Visciotti] moved to stand by Wolbert, who asked [Visciotti] to let them go, told him to take the car and the money, and assured him that he would not identify him. When Hefner left the car, [Visciotti] moved back toward Dykstra who was sitting down. [Visciotti] then raised the gun in one hand and shot Dykstra from a distance of about three or four feet....

After [Visciotti] shot Dykstra, Wolbert stood up and stepped back. [Visciotti] approached Wolbert, who was backing up, raised the gun in both hands, and shot Wolbert three times....

In spite of his life-threatening wounds, Wolbert did not lose consciousness. He heard defendant and Hefner get into the car and drive back down the road. He was later able to attract the attention of passersby who summoned aid. He identified his assailants as fellow employees at Global Wholesalers. Dykstra was dead when paramedics arrived. Wolbert was transported to the hospital where he underwent surgery. On the following morning, he identified both defendant and Hefner in a photographic lineup, identifying [Visciotti] as the person who had shot him and Dykstra.

[Visciotti] and Hefner were arrested as they left their motel room about 9 a.m. on the morning after the robbery and murder. The murder weapon, a.22 caliber single action revolver which still held six expended shell cases in the cylinder, was found hidden in a space behind the bathroom sink. [Visciotti] confessed his involvement and, at the request of the investigating officers, participated in a videotaped reenactment of those events that had taken place in Santiago Canyon.

Analysis of a sample of [Visciotti's] blood, taken at approximately noon on November 9, 1982, revealed no alcohol, amphetamines, opiates, barbiturates, or phencyclidine (PCP). Cocaine and benzoylecgonine, a metabolite of cocaine, were present, however.

People v. Visciotti, 2 Cal.4th 1, 28-30, 5 Cal.Rptr.2d 495, 825 P.2d 388 (1992).

Roger Agajanian ("Agajanian") was retained by Visciotti's father to represent Visciotti during pretrial proceedings, through trial, and on appeal. Agajanian was admitted to the California bar in July 1973. In re Visciotti, 14 Cal.4th 325, 336, 58 Cal.Rptr.2d 801, 926 P.2d 987 (1997). He had never tried a capital case that went to a jury or conducted a penalty phase trial before representing Visciotti, though he had represented clients charged with murder. Id. at 336, 58 Cal.Rptr.2d 801, 926 P.2d 987. Agajanian was suspended from the State Bar of California in 1990, 1991, and 1993, and resigned from the California bar in 1994.2 Id. at 349 n. 6, 58 Cal.Rptr.2d 801, 926 P.2d 987.

Trial Proceedings

Visciotti was tried by a jury in July 1983 in the Superior Court of the State of California, County of Orange. During the guilt phase of Visciotti's trial, the surviving victim, Michael Wolbert, testified on behalf of the prosecution. The prosecution additionally introduced as evidence Visciotti's videotaped confession and reenactment.

Dr. Louis Broussard ("Dr.Broussard") testified as a witness for the defense. Dr. Broussard testified that Visciotti "had minimal brain injury of a type associated with impulse disorders and specific learning disorders." Visciotti, 2 Cal.4th at 32, 5 Cal. Rptr.2d 495, 825 P.2d 388. He admitted during cross-examination, however, that he had not reviewed Visciotti's videotaped confession and reenactment, and would have conducted additional psychological testing and additional interviews had he had enough time to do so.

Visciotti testified on his own behalf. During Agajanian's direct examination, Visciotti described the night of the crimes consistently with the videotaped confession and reenactment. Agajanian also elicited information from Visciotti about his prior juvenile and misdemeanor offenses. Visciotti also admitted that he had been convicted of assault with a deadly weapon, and described the facts underlying this felony conviction. Visciotti testified that the assault occurred after two men broke down the door to his motel room and one, William Scofield ("Scofield"), cut Visciotti's roommate's throat with a knife, while a third man, armed with a gun, stood at the doorway. Visciotti testified that when the three men fled, Visciotti picked up the knife dropped by Scofield, ran after the men, and stabbed Scofield outside Scofield's motel room.

The prosecution contradicted Visciotti's description of the circumstances of the assault through its cross-examination of Visciotti and through the testimony of a police officer the prosecution called as a rebuttal witness. The prosecution elicited testimony from Visciotti and the police officer that Visciotti had broken into Scofield's room and stabbed both Scofield and Kathy Cusack ("Cusack"), a pregnant woman who was in Scofield's bed at the time.

The jury found Visciotti guilty of murder, attempted murder, and armed robbery, with a special circumstance finding that the murder was committed during the commission of a robbery.3

During the penalty phase of Visciotti's trial, Scofield and Cusack4 testified for the prosecution in support of its case in aggravation. Scofield's and Cusack's descriptions of the circumstances underlying Visciotti's assault conviction were consistent with that of the police officer who testified during the guilt phase. Agajanian called Visciotti's parents and siblings to testify during the penalty phase. As Agajanian later explained, his mitigation strategy was to elicit sympathy for Visciotti's family "in an attempt to make it more difficult for the jury to decide this family's one stray, its son and brother, should be executed." In re Visciotti, 14 Cal.4th at 347, 58 Cal. Rptr.2d 801, 926 P.2d 987. Visciotti was sentenced to death.

On automatic appeal, the California Supreme Court affirmed Visciotti's conviction, with one justice dissenting. People v. Visciotti, 2 Cal.4th 1, 5 Cal.Rptr.2d 495, 825 P.2d 388 (1992).

Habeas Proceedings

Visciotti filed a petition for a writ of habeas corpus in the California Supreme Court. The California Supreme Court appointed a referee5 to hold an evidentiary hearing and make findings of fact relating to Visciotti's claim that Agajanian provided ineffective assistance of counsel during the penalty phase. After the referee held the hearing and made findings of fact, and after briefing on the merits, the California Supreme Court denied Visciotti's petition in its entirety, with one justice concurring...

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