Wong v. Belmontes

• Decision Date: 16 November 2009
• Docket Number: No. 08–1263.,08–1263.
• Citation: 175 L.Ed.2d 328,558 U.S. 15,78 USLW 3285,130 S.Ct. 383
• Parties: Robert WONG, Warden, Petitioner, v. Fernando BELMONTES, Jr.
• Court: U.S. Supreme Court

558 U.S. 15

130 S.Ct. 383

175 L.Ed.2d 328

78 USLW 3285

Robert WONG, Warden, Petitioner,

v.Fernando BELMONTES, Jr.

No. 08–1263.

Supreme Court of the United States

Nov. 16, 2009.

PER CURIAM.

In 1981, in the course of a burglary, Fernando Belmontes bludgeoned Steacy McConnell to death, striking her in the head 15 to 20 times with a steel dumbbell bar. See People v. Belmontes, 45 Cal.3d 744, 759–761, 248 Cal.Rptr. 126, 755 P.2d 310, 315–316 (1988). After the murder, Belmontes and his accomplices stole McConnell's stereo, sold it for $100, and used the money to buy beer and drugs for the night. Id., at 764–765, 248 Cal.Rptr. 126, 755 P.2d, at 318–319.

Belmontes was convicted of murder and sentenced to death in state court. Unsuccessful on direct appeal and state collateral review, Belmontes sought federal habeas relief, which the District Court denied. The Court of Appeals reversed, finding instructional error, but we overturned that decision. Ayers v. Belmontes, 549 U.S. 7, 127 S.Ct. 469, 166 L.Ed.2d 334 (2006); see also Brown v. Belmontes, 544 U.S. 945, 125 S.Ct. 1697, 161 L.Ed.2d 518 (2005).

On remand, the Court of Appeals again ruled for Belmontes, this time finding that Belmontes suffered ineffective assistance of counsel during the sentencing phase of his trial. The District Court had previously denied relief on that ground, finding that counsel for Belmontes had performed deficiently under Ninth Circuit precedent, but that Belmontes could not establish prejudice under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Belmontes v. Calderon, Civ. S–89–0736 DFL JFM (ED Cal., Aug. 15, 2000), App. to Pet. for Cert. 140a, 179a, 183a. The Court of Appeals agreed that counsel's performance was deficient, but disagreed with the District Court with respect to prejudice, determining that counsel's errors undermined confidence in the penalty phase verdict. Belmontes v. Ayers, 529 F.3d 834, 859–863, 874 (C.A.9 2008). We disagree with the Court of Appeals as to prejudice, grant the State's petition for certiorari, and reverse.

I

Belmontes argues that his counsel was constitutionally ineffective for failing to investigate and present sufficient mitigating evidence during the penalty phase of his trial. To prevail on this claim, Belmontes must meet both the deficient performance and prejudice prongs of Strickland, 466 U.S., at 687, 104 S.Ct. 2052. To show deficient performance, Belmontes must establish that “counsel's representation fell below an objective standard of reasonableness.” Id., at 688, 104 S.Ct. 2052. In light of “the variety of circumstances faced by defense counsel [and] the range of legitimate decisions regarding how best to represent a criminal defendant,” the performance inquiry necessarily turns on “whether counsel's assistance was reasonable considering all the circumstances.” Id., at 688–689, 104 S.Ct. 2052. At all points, “[j]udicial scrutiny of counsel's performance must be highly deferential.” Id., at 689, 104 S.Ct. 2052.

The challenge confronting Belmontes' lawyer, John Schick, was very specific. Substantial evidence indicated that Belmontes had committed a prior murder, and the prosecution was eager to introduce that evidence during the penalty phase of the McConnell trial. The evidence of the prior murder was extensive, including eyewitness testimony, Belmontes' own admissions, and Belmontes' possession of the murder weapon and the same type of ammunition used to kill the victim. Record 2239–2250, 2261; Deposition of John Schick, Exhs. 62, 63, 64 (Sept. 26, 1995).

The evidence, furthermore, was potentially devastating. It would have shown that two years before Steacy McConnell's death, police found Jerry Howard's body in a secluded area. Howard had been killed execution style, with a bullet to the back of the head. The authorities suspected Belmontes, but on the eve of trial the State's witnesses refused to cooperate (Belmontes' mother had begged one not to testify). The prosecution therefore believed it could not prove Belmontes guilty of murder beyond a reasonable doubt. What the prosecution could prove, even without the recalcitrant witnesses, was that Belmontes possessed the gun used to murder Howard. So the State offered, and Belmontes accepted, a no-contest plea to accessory after the fact to voluntary manslaughter. Record 2239–2243; Deposition of John Schick, Exhs. 62, 63, 64.

But Belmontes had not been shy about discussing the murder, boasting to several people that he had killed Howard. Steven Cartwright informed the district attorney that Belmonteshad confessed to the murder. A police informant told detectives that Belmontes “bragged” about the murder, stating that he was “mad” at Howard because “the night before, he had quite a[lot] of dope and wouldn't share it with him.” After double jeopardy protection set in and he had been released on parole, Belmontes admitted his responsibility for the murder to his counselor at the California Youth Authority, Charles Sapien. During his time in confinement, Belmontes had “always denied that he was the [one] who shot Jerry Howard.” But because Sapien “had been square with [Belmontes],” Belmontes decided to level with Sapien upon his release, telling Sapien that he had “ ‘wasted’ that guy.” Record 2240; Deposition of John Schick, Exhs. 62, 63, 64.

Schick understood the gravity of this aggravating evidence, and he built his mitigation strategy around the overriding need to exclude it. California evidentiary rules, Schick knew, offered him an argument to exclude the evidence, but those same rules made clear that the evidence would come in for rebuttal if Schick opened the door. Record 2256; see also People v. Rodriguez, 42 Cal.3d 730, 791–792, 230 Cal.Rptr. 667, 726 P.2d 113, 153 (1986); People v. Harris, 28 Cal.3d 935, 960–962, 171 Cal.Rptr. 679, 623 P.2d 240, 254 (1981). Schick thus had “grave concerns” that, even if he succeeded initially in excluding the prior murder evidence, it would still be admitted if his mitigation case swept too broadly. Accordingly, Schick decided to proceed cautiously, structuring his mitigation arguments and witnesses to limit that possibility. Deposition of John Schick 301, 309–310; see Strickland, supra, at 699, 104 S.Ct. 2052 (“Restricting testimony on respondent's character to what had come in at the plea colloquy ensured that contrary character and psychological evidence and respondent's criminal history, which counsel had successfully moved to exclude, would not come in”).

As Schick expected, the prosecution was ready to admit this evidence during the sentencing phase. Schick moved to exclude the evidence, arguing that the State should be allowed to tell the jury only that Belmontes had been convicted of being an accessory after the fact to voluntary manslaughter—nothing more. Record 2240–2254. Schick succeeded in keeping the prosecution from presenting the damaging evidence in its sentencing case in chief, but his client remained at risk: The trial court indicated the evidence would come in for rebuttal or impeachment if Schick opened the door. Id., at 2256.

This was not an empty threat. In one instance, Schick elicited testimony that Belmontes was not a violent person. The State objected and, out of earshot of the jury, argued that it should be able to rebut the testimony with the Howard murder evidence. Id., at 2332–2334. The Court warned Schick that it was “going to have to allow [the prosecution] to go into the whole background” if Schick continued his line of questioning. Id., at 2334. Schick acquiesced, and the court struck the testimony. Ibid.

The Court's warning reinforced Schick's understanding that he would have to tailor his mitigation case carefully to preserve his success in excluding the Howard murder evidence. With that cautionary note in mind, Schick put on nine witnesses he thought could advance a case for mitigation, without opening the door to the prior murder evidence. See id., at 2312–2417.

The Court of Appeals determined that in spite of these efforts, Schick's performance was constitutionally deficient under Circuit precedent. Belmontes, 529 F.3d, at 862–863. The State challenges that conclusion, but we need not resolve the point, because we agree with the District Court that Belmontes cannot establish prejudice.

II

To establish prejudice, Belmontes must show “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S., at 694, 104 S.Ct. 2052. That showing requires Belmontesto establish “a reasonable probability that a competent attorney, aware of [the available mitigating evidence], would have introduced it at sentencing,” and “that had the jury been confronted with this ... mitigating evidence, there is a reasonable probability that it would have returned with a different sentence.” Wiggins v. Smith, 539 U.S. 510, 535, 536, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003).

The Ninth Circuit determined that a reasonably competent lawyer would have introduced more mitigation evidence, on top of what Schick had already presented. For purposes of our prejudice analysis, we accept that conclusion and proceed to consider whether there is a reasonable probability that a jury presented with this additional mitigation evidence would have returned a different verdict.

In evaluating that question, it is necessary to consider all the relevant evidence that the jury would have had before it if Schick had pursued the different path—not just the mitigation evidence Schick could have presented, but also the Howard murder evidence that almost certainly would have come in with it. See Strickland, supra, at 695–696, 700, 104 S.Ct. 2052. Thus, to establish prejudice, Belmontes must show a reasonable probability that the jury would have rejected a capital sentence after it weighed the entire body of mitigating evidence (including the additional testimony Schick could have...