Wade v. Calderon, 90-56332

Decision Date16 May 1994
Docket NumberNo. 90-56332,90-56332
Citation29 F.3d 1312
PartiesMelvin Meffery WADE, Petitioner-Appellant, v. Arthur CALDERON, * Warden of San Quentin; Attorney General of California, Respondents-Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

Page 1312

29 F.3d 1312
Melvin Meffery WADE, Petitioner-Appellant,
v.
Arthur CALDERON, * Warden of San Quentin;
Attorney General of California, Respondents-Appellees.
No. 90-56332.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted June 16, 1993.
Decided May 16, 1994.

Page 1314

Barry P. Helft, Donald J. Ayoob, Deputy State Public Defenders, San Francisco, CA, Michael R. Levine, Asst. Federal Public Defender, Portland, OR, Joel Levine, Encino, CA, as Special Counsel for petitioner-appellant.

Pat Zaharopoulos, Deputy Atty. Gen., and Holly D. Wilkens, Supervising Deputy Atty. Gen., San Diego, CA, for respondent-appellee.

Page 1315

Cliff Gardner, Fiedler, Gardner & Derham, San Francisco, CA, for amicus California Appellate Project.

Kent S. Scheidegger, Sacramento, CA, for amicus Crim. Justice Legal Foundation.

Appeal from the United States District Court for the Central District of California.

Before: CANBY, REINHARDT, and TROTT, Circuit Judges.

Partial Concurrences and Partial Dissents by Judges REINHARDT and TROTT.

CANBY, Circuit Judge:

Melvin Meffery Wade, a California state prisoner sentenced to death, appeals the district court's denial of his 28 U.S.C. Sec. 2254 habeas petition. Wade was convicted in the San Bernardino County Superior Court of first-degree murder. We review de novo the district court's denial of the habeas petition. Norris v. Risley, 878 F.2d 1178, 1180 (9th Cir.1989). We affirm the district court's denial of relief on the merits of those claims challenging Wade's conviction. We hold, however, that Wade's death sentence cannot stand for two reasons. First, Wade is entitled to a new special circumstances determination because the torture-murder special circumstance instruction failed to meet the requirements of the Eighth Amendment. 1 Second, Wade received ineffective assistance of counsel at the penalty phase of his trial.

Finally, we reject Wade's various challenges to his habeas proceedings in district court.

I
FACTS

The facts of this case are set out at greater length in People v. Wade, 44 Cal.3d 975, 244 Cal.Rptr. 905, 750 P.2d 794, cert. denied, 488 U.S. 900, 109 S.Ct. 248, 102 L.Ed.2d 237 (1988). Wade was 24 years old at the time of the offense. He was living with his wife, Irabell "Cookie" Strong, and four of Cookie's children, one of whom was Joyce Tolliver, the victim.

On the morning of April 10, 1981, after accusing 10-year-old Joyce of not properly washing herself, Wade began hitting her. He proceeded to beat her with a wooden board. He then ordered her to get inside a duffel bag, and told one of the other children to zip the bag. He then put the bag containing Joyce in the unfinished attic.

Joyce eventually freed herself from the bag and asked if she could come down. As she came down, Wade began beating her again, shouting that he was "Michael the Archangel" and that he would kill Joyce because she was a "devil." Wade continued to beat her throughout the evening, and at one point attempted to hang her from a nail on the wall with a dog leash.

Later, Wade also hit Cookie and then ran away. Cookie asked the manager of the motel where they lived to call the police. 2 When the police arrived, they found Joyce dead on the bedroom floor. A subsequent autopsy revealed that Joyce died from cranial, cerebral, abdominal, and soft-tissue injuries.

Shortly after the police arrived, Wade returned to the motel with his hands in the air and said: "Here I am. I'm the one you want. I guess I hit her too hard. I guess I hit her too hard." Wade was then arrested.

Evidence was admitted at trial that Wade had been physically and sexually abused by Jack, his mother's boyfriend, from the age of three. Jack also would lock Wade in a closet for hours at a time. Wade, while in the closet, would talk to an imaginary friend. Eventually, this friend, called "Othello," began to talk back to him. Wade began experiencing

Page 1316

blackouts at the age of 12, and received psychological counseling throughout his childhood. He also attempted suicide three times.

All of the defense medical and psychological experts determined that Wade had an alternate personality called "Othello," although one viewed the phenomenon as being one of Wade's believing that he was possessed by devils. Two of the experts encountered additional personalities named "Michael" and "Joe." While the experts testified that Wade was mild-mannered, "Othello" was hostile, boisterous, and violent. Evidence was also presented that Wade was borderline mentally retarded with an IQ of about 70.

During the penalty phase of his trial, Wade testified that he was unaware he had killed Joyce and that he loved her. He also testified briefly about the abuse he received as a child. At his counsel's request, Wade brought forth "Othello," who testified that he felt no sorrow for Joyce's death and asked that the jury sentence Wade to death.

II
PROCEDURAL HISTORY

Wade was convicted of murder and sentenced to death on May 21, 1982. On direct appeal, Wade's death sentence initially was reversed because the trial court had instructed the jury that it must not be swayed by sympathy in determining Wade's punishment. People v. Wade, 43 Cal.3d 366, 233 Cal.Rptr. 48, 59, 729 P.2d 239, 250 (1987). On rehearing, however, the California Supreme Court changed its previous stance and affirmed Wade's conviction and sentence. People v. Wade, 44 Cal.3d 975, 244 Cal.Rptr. 905, 907, 750 P.2d 794, 796 (1988). Although the Court held that the "heinous, atrocious or cruel" special circumstance found by the jury was unconstitutionally vague, it affirmed Wade's death sentence on the basis of the torture-murder special circumstance. Id. 233 Cal.Rptr. at 57-59, 729 P.2d at 248-50. The United States Supreme Court denied certiorari. Wade v. California, 488 U.S. 900, 109 S.Ct. 248, 102 L.Ed.2d 237 (1988).

Wade filed a petition for habeas corpus in the district court, pursuant to 28 U.S.C. Sec. 2254. The district court denied the petition after holding an evidentiary hearing on an ineffective assistance of counsel claim. Wade v. Vasquez, 752 F.Supp. 931 (C.D.Cal.1990). On appeal, this court, after appointing special counsel, ordered a limited remand on an issue of alleged conflict of interest of habeas counsel. Wade v. Vasquez, No. 90-56332, unpublished memorandum disposition (9th Cir. April 21, 1992). After conducting a two-day hearing, the district court held that there was no conflict of interest and denied the claim. Wade v. Vasquez, No. CV 89-0173-R, unpublished memorandum disposition (C.D.Cal. Dec. 14, 1992). This appeal followed.

III
GUILT PHASE CONTENTIONS

Wade contends that trial counsel provided ineffective assistance in violation of the Sixth Amendment during several portions of the guilt phase. We reject this contention.

In order to demonstrate that his counsel was ineffective, Wade must show that counsel's performance fell below that of a reasonable attorney and that counsel's errors created a reasonable probability that, but for the errors, the outcome of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S.Ct. 2052, 2064, 2068, 80 L.Ed.2d 674 (1984). We "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689, 104 S.Ct. at 2065. Furthermore:

Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.

Id. at 690-91, 104 S.Ct. at 2066.

Wade's first contention, and the one that is most troubling concerning counsel's guilt phase performance, is that counsel did

Page 1317

not adequately investigate and prepare before the start of trial. Wade further argues that counsel had no theory of the defense at the time the trial commenced. As evidence of his counsel's lack of preparation, Wade points to the fact that his counsel, who took over the case from prior counsel, billed only twelve and one-half hours prior to the start of trial. Moreover, Wade contends that had counsel been prepared, he would have presented a "battered child syndrome" defense as recognized in People v. Steger, 16 Cal.3d 539, 128 Cal.Rptr. 161, 167, 546 P.2d 665, 671 (1976).

Trial counsel, however, testified at the evidentiary hearing in the district court that he did not bill anywhere near the actual amount of time spent on the case because, as other testimony also indicated, the county courts were very frugal with funds for appointed counsel in capital cases. This explanation was found as a fact by the district court. Wade has not demonstrated that the finding is clearly erroneous.

Counsel's preparation prior to trial certainly could have been more thorough. At the beginning of the trial, counsel had reports from some experts that Wade's capacity to commit premeditated murder was questionable, but Wade's mental health picture was incomplete. Jury selection began only two months after counsel, Wade's second attorney, was appointed. Counsel could have asked for a continuance until he received the reports from the remaining experts who were examining Wade, but he failed to do so. Counsel did not decide to present a defense of multiple personality disorder until a week after the jury had been sworn in, which is when he began to receive reports from his experts that Wade might suffer from this disorder. However, even if we were to hold that counsel's preparation was below that of a reasonable attorney, we must still address whether, but for counsel's lack of preparation, there is a reasonable probability that the outcome of the proceeding would have been different. See Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. We conclude that Wade cannot demonstrate prejudice under this standard.

Wade contends...

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