FINDINGS AND RECOMMENDATIONS
Petitioner Larry J. Webster is a state prisoner under sentence of death. He seeks relief pursuant to 28 U.S.C. § 2254. In 2000, in response to respondent's motion for summary judgment, the court denied respondent's motion for summary judgment as to several claims within the petition, denied federal habeas relief as to numerous other claims by granting respondent's motion for summary judgment in part and granted habeas relief with respect to two of petitioner's claims on the grounds that the retrospective application of the construction of two special circumstances in petitioner's case by the state courts violated his right to due process. (Dkt. No. 232.) The granting of habeas relief with respect to those two claims was subsequently reversed by the Ninth Circuit Court of Appeals and the matter was remanded. Webster v. Woodford, 369 F.3d 1062 (9th Cir. 2004).
In 2006, the undersigned granted petitioner's motion for an evidentiary hearing with respect to the following three remaining claims of his petition: (1) ineffective assistance of counsel at the penalty phase; (2) denial of meaningful appellate review; and (3) insufficient narrowing of death-eligible offenses.1 After lengthy development of the evidence and submission thereof to the court, the parties filed separate memoranda of points and authorities addressing those three claims. They also submitted final arguments addressing the following claims which had survived summary judgment but were not the subject of the ordered evidentiary hearing: (1) an Eighth Amendment challenge to the "lying in wait" special circumstance; (2) improper penalty phase instructions; (3) the trial court's failure to adequately review the sentence; (4) ineffective assistance of counsel for failure to present a mental health defense at the guilt phase; (5) ineffective assistance of counsel regarding petitioner's motion to suppress; (6) application of Proposition 8 violated the Ex Post Facto Clause; (7) the trial court erred in failing to record sidebar conferences; (8) the improper admission of testimony; (9) ineffective assistance of counsel during jury selection; and (10) cumulative error.
These findings and recommendations thus address all remaining evidentiary hearing and non-evidentiary hearing claims. After consideration of the pleadings, briefs, and arguments of counsel, after careful review of the state court record, and in light of the facts developed in the evidentiary hearing and by expansion of the record under Rule 7 of the Rules Governing § 2254 cases, the court makes the following findings and recommends that federal habeas relief be granted as to petitioner's claim that he received ineffective assistance of counsel in connection with the penalty phase of his trial.
Petitioner Larry J. Webster and three other men, Joseph Madrigal, Carl Williams and Robert Coville, were jointly tried on charges arising from the death of William Burke.
The principal prosecution witnesses were Bruce Smith and Michelle Cram. As the jury knew, Smith had already pled guilty to second degree murder in connection with the homicide, and Cram had been granted immunity in return for her testimony.
Smith and Cram provided the following account, differing only in minor details: In late August 1981, [petitioner], Joseph Madrigal, Carl Williams, Robert Coville, Smith, and the 17-year-old Cram were living at a riverbank encampment in Sacramento. [Petitioner] was the group leader. On the night of August 29, Smith, Madrigal, and Coville robbed a nearby convenience store. Quick response by the police forced the trio to hide for several hours before returning to camp.
The next day, August 30, [petitioner] and Williams made one of several trips to buy beer, which the camp residents were consuming at a steady pace. When the men returned in early afternoon, [petitioner] said they had met two "outlaws" ("street persons" or "survivors") at the Shell station near the convenience store. [Petitioner] reported there was still intense police activity in the area because of the robbery, and he suggested the group needed to leave town. [Petitioner] said he had arranged to use the "outlaws'" car for joint drug purchases or robberies that evening. The opportunity arose, he suggested, to lure one of the "outlaws" back to the camp, kill him, and steal the car.
Madrigal, Coville, and Williams expressed enthusiasm for the plan. According to Cram, [petitioner] said he personally would kill and dismember the victim; according to Smith, Coville said he "hadn't killed somebody in quite a while" and would "take care of it." When Cram expressed skepticism about [petitioner's] boasts, he insisted he was serious. [Petitioner] said this would be Cram's first criminal lesson and would help her become more independent from Williams, with whom she was living.
It was decided that because the "outlaws" knew Williams, he would walk back to the Shell station with [petitioner] to meet them. Madrigal would go along. Once the three returned to camp with the intended victim, either [petitioner] (according to Cram) or Coville (according to Smith) would kill him. [Petitioner] showed Smith where to dig a grave and told Cram to clean up the campsite and pack in preparation for the group's departure. [Petitioner],Williams, and Madrigal then left for a 7:30 p.m. meeting with the "outlaws." [Petitioner] had drunk beer all day and may have taken amphetamines. As usual, [petitioner] was wearing glasses; Williams wore a cowboy hat.
While the three men were gone, Smith and Cram worked at their assignments; Coville sat and drank beer. After half an hour's absence, [petitioner] called out from the top of a levee that his group had returned. Four men walked single file down the trail to the camp. Williams was in the lead, followed in order by Madrigal, victim Burke, and [petitioner]. When the four were about halfway down the trail, [petitioner] suddenly grabbed Burke and pulled a knife. According to Smith, [petitioner] moved around to the front of Burke and stabbed him; Cram saw [petitioner] reach from behind to stab Burke in the chest. Burke protested, and a struggle ensued. Madrigal turned back to assist [petitioner]. Burke began to make gurgling sounds.
Cram became hysterical, so [petitioner] and Williams told Smith to take her to "Fag Beach" and wait.[3] Ten minutes later, [petitioner], Madrigal, Williams, and Coville arrived at the "Fag Beach" parking lot with the group's belongings. [Petitioner] gave Coville a car key, which Coville used to unlock the trunk of a car parked in the lot. The group loaded their possessions in the car, proceeded to Interstate 5, and drove all night toward Southern California. [Petitioner] indicated that they should eventually turn east, toward Missouri.
As they rode, Madrigal explained to Smith that "the man had died hard." Madrigal said Burke had managed to grab [petitioner's] knife and inflict a thigh wound on [petitioner] before Madrigal joined in to help [petitioner] "finish the job and get his knife back." Madrigal indicated that he himself had been slashed across the stomach by Burke during the struggle. Smith said that, at one point, he saw [petitioner] and Madrigal's knives in the car.
About 3:30 p.m. the next day, as [petitioner] was driving, an officer of the California Highway Patrol (CHP) stopped the group's car for speeding on Interstate 15 near Barstow. Investigation stemming from the traffic stop eventually led to the arrest of all six passengers, and to statements by Smith and Cram concerning the Burke homicide. (See discussion, post.) On September 8, Detective Burchett of the Sacramento Police Department took an in-custody statement from Cram which essentially conformed to her trial testimony.
Guided by Smith's directions, the police found Burke's body in its shallow riverbank grave on the morning of September 3. Burke's throat had been cut, and there were 24 other stab wounds, 8 in the rear of the body. The wounds could have been inflicted by more than one knife and more than one person. Burke's pants pocket was turned out, but his wallet had not been taken.
The car in which the group was arrested was registered to Ronnie Glover. Glover testified that on the evening of August 30, he loaned the car to his cousin Burke, with whom he was traveling. Burke then left the Shell station in the company of three men meeting the descriptions of [petitioner] (glasses), Madrigal, and Williams (cowboy hat). Glover never saw Burke or the car again.
When examined at the time of booking, Madrigal and [petitioner] both had fresh injuries. [Petitioner's] wound was on the knee. A bloodstained knife was found in the car taken from Glover and Burke.
[Petitioner] testified in his own behalf. He denied any plan to kill the victim and steal his car. The camp residents had engaged in a drunken discussion about killing people, but [petitioner] insisted he merely taunted the others to show they were not as "tough" as they maintained. [Petitioner] did tell the "sniveling" Cram that "[t]his will be your first day of school," but the remark was intended only to "shut her up." He did not order anyone to dig a grave or break camp before he went to meet Glover and Burke.
Later, according to [petitioner], Burke handed him the car keys when they arrived at the "Fag Beach" parking lot. [Petitioner] was "fairly loaded" but not staggering drunk. As the four men walked from the car toward the camp, he and Burke were arguing over how to split the proceeds of drug sales and robberies planned for later in the evening. Burke wanted a larger share because he had furnished the car. Burke suddenly pulled a knife and
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