Walker v. Martel

• Citation: 709 F.3d 925
• Decision Date: 07 March 2013
• Docket Number: No. 11–99006.,11–99006.
• Parties: Marvin Pete WALKER, Petitioner–Appellee, v. Michael MARTEL, Warden, Respondent–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

709 F.3d 925

Marvin Pete WALKER, Petitioner–Appellee,

v.Michael MARTEL, Warden, Respondent–Appellant.

No. 11–99006.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 4, 2012.

Filed March 7, 2013.

Bruce Ortega, Deputy Attorney General, San Francisco, CA, for Respondent–Appellant.

Thomas B. Mayhew (argued) and Douglas R. Young (argued), Farella Braun + Martel, LLP, Nanci L. Clarence, Clarence Dyer & Cohen, LLP, San Francisco, CA, for Petitioner–Appellee.

Appeal from the United States District Court for the Northern District of California, Saundra B. Armstrong, District Judge, Presiding. D.C. No. 4:94–cv–01997–SBA.

Before: BARRY G. SILVERMAN, SUSAN P. GRABER, and RONALD M. GOULD, Circuit Judges.

OPINION

SILVERMAN, Circuit Judge:

Warden Michael Martel appeals the district court's grant of habeas relief under 28 U.S.C. § 2254 to Petitioner–Appellee Marvin Walker. During just one month in 1979, Walker committed two armed robberies in San Jose, California, in which he shot and attempted to kill four people. He shot most of the victims in the head, killing a 15–year–old boy and permanently injuring the three remaining individuals. Three weeks after the second robbery, Walker sold the murder weapon to a police officer who had been working undercover purchasing stolen property. Walker told the officer that the gun had been in his possession for months, had made him a lot of money over the last six months, and “had done a murder.”

He was convicted of first-degree murder, three counts of assault with intent to commit murder and other charges, and sentenced to death in 1980. During his trial, the sheriff's office placed a knee restraint on one of Walker's legs under his pants. It is undisputed that several members of the jury became aware of it. Jurors noticed the restraint during trial because it made Walker limp to and from the witness stand when he testified during both the guilt and penalty phase. No record was made of the need for such a restraint, and Walker's lawyer made no objection to the knee brace. On direct appeal, the California Supreme Court held that any objection to the use of the brace had been waived by the failure to object at the time. People v. Walker, 47 Cal.3d 605, 253 Cal.Rptr. 863, 765 P.2d 70, 83 (1988).

Claims of ineffective assistance of counsel raised in the state habeas petitions were denied without explanation. In his subsequent federal habeas petition, Walker claimed that defense counsel was ineffective for failing to object to the knee restraint. The district court agreed, holding that the state court unreasonably applied Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Walker v. Martel, 803 F.Supp.2d 1032, 1044–53 (N.D.Cal.2011). The district court ruled that the only reasonable conclusion to draw from the record was that counsel was constitutionally deficient in failing to object to the restraint and that Walker was prejudiced thereby. The warden now appeals, challenging only the district court's ruling on the prejudice prong of Strickland.

Because the California Supreme Court did not provide an explanation for its denial of Walker's ineffective assistance of counsel claim, our obligation under the Antiterrorism and Effective Death Penalty Act of 1996 is to determine whether the state court decision, even sans explanation, was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1); Harrington v. Richter, ––– U.S. ––––, 131 S.Ct. 770, 785–86, 178 L.Ed.2d 624 (2011). The Supreme Court has stated that:

Under § 2254(d), a habeas court must determine what arguments or theories supported or, as here, could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court.

Id. at 786 (emphasis added). For the following reasons, we hold that the state court reasonably could have applied Strickland to decide that Walker was not prejudiced by the knee restraint.

• First, although members of the jury became aware of the knee brace, it was at all times worn under Walker's clothing and was relatively unobtrusive compared to unconcealed leg irons, handcuffs secured to belly chains, gags, and being bound to a chair, as occurred in other cases.

• Second, because Walker's hands were unencumbered, the restraint here signified custody status rather than dangerousness, and the fact that Walker was in custody during the trial was something he himself voluntarily introduced into evidence.

• Third, the judge indicated to the jury that the brace was a more-or-less routine measure taken by the sheriff for all persons in custody. The judge's comments went a long way toward dispelling any impression that Walker posed a unique danger in court.

• Fourth, the evidence of Walker's guilt was strong. He was identified by two of the survivors of the shootings. These identifications were powerfully corroborated by his attempt to sell the very weapon used in both episodes to an undercover police officer less than three weeks after the second robbery.

• Fifth, the jury acquitted Walker of assaulting with intent to murder a customer who entered the store while the robbery was in progress. This is compelling proof that the jury could evaluate the evidence fairly and was not blinded by the brace.

On this record, the state court reasonably could conclude that it was not reasonably probable that the jury would have acquitted Walker had Walker's counsel objected to the restraint.

This is true for the penalty phase as well. The magnitude of Walker's crimes was enormous. During the first armed robbery, he shot three store employees, two of them execution-style in the head, and killed a 15–year–old. During the robbery, Walker said he wanted the victims killed to eliminate any witnesses. In the second incident, Walker sexually molested a 20–year–old woman at gunpoint by ripping open her blouse and touching her breasts, then pistol-whipped her approximately 12 times, and shot her twice, once in the eye and once through her left ear. She lost her eye and the hearing in one ear, and suffered a fractured neck. In the face of these horrendous crimes, Walker's mitigation evidence consisted of the fact that he was 19 years old at the time of the offenses, had no prior criminal record, had done yard work for a church secretary in the past, gave a friend rides to work, provided financial and emotional support to his mother and sister, and was loved by them and his girlfriend.

The California Supreme Court did not unreasonably apply or act contrary to Supreme Court law in deciding, as it necessarily did, that the restraint Walker was required to wear under his pants during the penalty phase was trivial in comparison to the magnitude of his crimes, taking into account the nature of the mitigation evidence presented to the jury. Put another way, we cannot say that the California Supreme Court was unreasonable in deciding that it was not reasonably probable that Walker would have been spared the death penalty had his counsel objected to the knee restraint.

We reverse the district court's granting of the writ, and we remand for the district court's consideration of the other claims it held in abeyance.

I. Factual BackgroundA. The Crimes

1. August 6, 1979 Incident

We take the facts of Walker's crimes and the ensuing investigation mainly from the California Supreme Court's 1989 opinion affirming Walker's conviction on direct appeal. Our “review is limited to the record that was before the state court that adjudicated the claim on the merits.” Cullen v. Pinholster, ––– U.S. ––––, 131 S.Ct. 1388, 1398, 179 L.Ed.2d 557 (2011). The state court's factual findings are presumed to be correct unless the petitioner rebuts this presumption by clear and convincing evidence. See28 U.S.C. § 2254(e)(1); Frost v. Van Boening, 692 F.3d 924, 929 (9th Cir.2012).

On August 6, 1979, Walker entered Dan's Bottle Shop in San Jose, California, accompanied by another individual. In the store were co-owner Jerry Romero and two young employees, Joe Vasquez and Andy Zamora. Walker drew his gun, announced that he was holding up the store, and marched Romero, Vasquez, and Zamora at gunpoint into the back room. Walker ordered Romero to open the safe. When Romero replied that he did not have the combination, Walker grabbed a claw hammer and threatened to strike Romero with it. Walker's companion told him to “wait a minute,” searched Romero's wallet unsuccessfully for the combination, and then told Walker, “He doesn't know it, just forget it.” Walker's companion returned Romero's wallet.

The front door bell then sounded, indicating that a customer had entered the store, and Walker instructed Vasquez to wait on the customer, threatening that if he made any “funny moves,” he would be shot. Walker observed from the top of some storage shelves. After the transaction, the customer left, and Walker and his companion moved the group to the front of the store. Walker opened the cash register and removed approximately $150. His companion said, “Come on. We got the money. Let's get out.” Walker replied, “No. We're not going to leave any witnesses.”

Walker proceeded to march the staff into the back room again. Walker handed his gun to his companion, took a nearby wine bottle in hand, and struck Romero across the forehead with it. As Romero fell, Walker struck him with a second wine bottle. Romero lay on the floor and pretended to be dead. Walker then lifted Romero's wallet, felt Romero's back, and stated “We don't have to worry about this guy any more.”

Walker next ordered Vasquez and Zamora on their knees, and they complied. Romero heard them crying and pleading for their lives. Three shots were fired in quick succession. Neither Romero nor Zamora...