NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 10 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
CURTIS LEE ERVIN, No. 16-99010
Petitioner-Appellant, D.C. No. 5:00-cv-01228-LHK
v. MEMORANDUM* RONALD DAVIS, Warden, California State Prison at San Quentin,
Respondent-Appellee.
Appeal from the United States District Court for the Northern District of California Lucy H. Koh, District Judge, Presiding
Argued and Submitted June 2, 2021 Seattle, Washington
Before: GOULD, OWENS, and FORREST, Circuit Judges.
Curtis Ervin appeals from the denial of his 28 U.S.C. § 2254 habeas petition
seeking relief from his first-degree murder conviction and death sentence on four
grounds: (1) the prosecutor improperly granted a witness full immunity, which
gave the witness a “license to lie” during the trial, (2) racial animus tainted the jury
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. deliberations, (3) Ervin’s counsel was prejudicially ineffective during sentencing,
and (4) the prosecutor violated Batson v. Kentucky, 476 U.S. 79 (1986). As the
parties are familiar with the facts, we do not recount them here. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm on the first three issues. We
resolve the Batson issue in a concurrently filed opinion.
We review the district court’s denial of a habeas petition de novo. Stanley v.
Schriro, 598 F.3d 612, 617 (9th Cir. 2010). Because Ervin filed his habeas petition
after 1996, the Antiterrorism and Effective Death Penalty Act (“AEDPA”) governs
this case. Hurles v. Ryan, 752 F.3d 768, 777 (9th Cir. 2014). Under AEDPA, we
can grant a habeas petition only if we conclude that the state court’s determination
“(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established [f]ederal law,” or “(2) resulted in a decision that
was based on an unreasonable determination of the facts in light of the evidence
presented in the [s]tate court proceeding.” 28 U.S.C. § 2254(d). This standard is
highly deferential and requires that we give the state court the benefit of the doubt.
See Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam).
1. Immunity Grant
Ervin argues that the prosecutor violated his constitutional rights by issuing
an overbroad grant of immunity to an uncharged co-conspirator, Armond Jack,
who was then purportedly given a “license to lie” during Ervin’s trial. The
2 California Supreme Court rejected this claim, concluding that the immunity
agreement extended only to prior acts of perjury; that Ervin failed to object to or
seek clarification of the scope of the immunity agreement; and that, regardless,
Ervin failed to demonstrate prejudice in part because the jurors were fully aware of
the immunity grant. People v. Ervin, 990 P.2d 506, 523–24 (Cal. 2000).
We see no error in the California Supreme Court’s conclusion. Even if the
immunity grant was overbroad and Ervin’s claim is not procedurally defaulted,
Ervin has not demonstrated that the allegedly perjured testimony had a “substantial
and injurious” effect on the verdict resulting in “actual prejudice.” Brecht v.
Abrahamson, 507 U.S. 619, 637 (1993) (citations omitted); see also Davis v.
Ayala, 576 U.S. 257, 268–70 (2015) (“[T]he Brecht standard ‘subsumes’ the
requirements that § 2254(d) imposes when a federal habeas petitioner contests a
state court’s determination that a constitutional error was harmless . . . .” (citation
omitted)).
Despite Ervin’s contention that “[h]ad the jury known the truth, the case
would have fallen apart,” the jury here was informed of the immunity deal,
including that “Jack would not be prosecuted for any perjury based upon any
testimony given at this trial.” As the California Supreme Court noted, the defense
extensively cross-examined Jack and repeatedly emphasized that he could not be
trusted because of his immunity for perjury. Ervin, 990 P.2d at 523. Moreover,
3 ample physical evidence supported Ervin’s guilt independent of Jack’s testimony.
See id. at 514. Thus, the California Supreme Court’s denial of Ervin’s request for
relief based on the immunity agreement was not objectively unreasonable.
2. Jury Deliberations
Ervin next contends that racial animus permeated jury deliberations. In
2005, the California Supreme Court summarily denied his claim. At the time, both
federal and state law prohibited evidence of jury deliberations or a juror’s thought
processes. In 2017, the U.S. Supreme Court recognized an exception where it is
clear a juror “relied on racial stereotypes or animus to convict a criminal
defendant.” Peña-Rodriguez v. Colorado, 137 S. Ct. 855, 869 (2017). Even
assuming Peña-Rodriguez applies retroactively, however, Ervin has not
demonstrated “overt racial bias that cast[s] serious doubt on the fairness and
impartiality of the jury’s deliberations and resulting verdict.” Id.
Ervin relies largely on juror declarations and statements made to a defense
investigator to demonstrate racial animus. Ervin contends that the declarations and
statements show that “racial divide . . . infected the case,” and he points to certain
jurors’ statements and evidence of a “devil’s bargain”—in which the jury was
originally divided along racial lines on whether to impose capital punishment on
Ervin, who is black, or his co-defendant Robert McDonald, who was white—as
proof. Ervin cannot show, however, that any alleged racial animus was a
4 “significant motivating factor” in any juror’s vote to convict. Id. The record also
indicates the jury decided each defendant’s sentence based on his perceived moral
culpability, and indeed, the same jury gave Ervin’s other co-defendant, Arestes
Robinson, who is black, a life sentence. Ervin, 990 P.2d at 514. Thus, Ervin’s
evidence of racial animus does not rise to the level required for habeas relief. See
Peña-Rodriguez, 137 S. Ct. at 869 (“Not every offhand comment indicating racial
bias or hostility will justify setting aside the no-impeachment bar to allow further
judicial inquiry.”).
3. Ineffective Assistance of Counsel (“IAC”)
Ervin also argues that his counsel was prejudicially ineffective during the
sentencing phase. To prevail on an IAC claim, Ervin must demonstrate his
counsel’s representation (1) “fell below an objective standard of reasonableness,”
and (2) “that there is a reasonable probability that, but for counsel’s unprofessional
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 10 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
CURTIS LEE ERVIN, No. 16-99010
Petitioner-Appellant, D.C. No. 5:00-cv-01228-LHK
v. MEMORANDUM* RONALD DAVIS, Warden, California State Prison at San Quentin,
Respondent-Appellee.
Appeal from the United States District Court for the Northern District of California Lucy H. Koh, District Judge, Presiding
Argued and Submitted June 2, 2021 Seattle, Washington
Before: GOULD, OWENS, and FORREST, Circuit Judges.
Curtis Ervin appeals from the denial of his 28 U.S.C. § 2254 habeas petition
seeking relief from his first-degree murder conviction and death sentence on four
grounds: (1) the prosecutor improperly granted a witness full immunity, which
gave the witness a “license to lie” during the trial, (2) racial animus tainted the jury
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. deliberations, (3) Ervin’s counsel was prejudicially ineffective during sentencing,
and (4) the prosecutor violated Batson v. Kentucky, 476 U.S. 79 (1986). As the
parties are familiar with the facts, we do not recount them here. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm on the first three issues. We
resolve the Batson issue in a concurrently filed opinion.
We review the district court’s denial of a habeas petition de novo. Stanley v.
Schriro, 598 F.3d 612, 617 (9th Cir. 2010). Because Ervin filed his habeas petition
after 1996, the Antiterrorism and Effective Death Penalty Act (“AEDPA”) governs
this case. Hurles v. Ryan, 752 F.3d 768, 777 (9th Cir. 2014). Under AEDPA, we
can grant a habeas petition only if we conclude that the state court’s determination
“(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established [f]ederal law,” or “(2) resulted in a decision that
was based on an unreasonable determination of the facts in light of the evidence
presented in the [s]tate court proceeding.” 28 U.S.C. § 2254(d). This standard is
highly deferential and requires that we give the state court the benefit of the doubt.
See Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam).
1. Immunity Grant
Ervin argues that the prosecutor violated his constitutional rights by issuing
an overbroad grant of immunity to an uncharged co-conspirator, Armond Jack,
who was then purportedly given a “license to lie” during Ervin’s trial. The
2 California Supreme Court rejected this claim, concluding that the immunity
agreement extended only to prior acts of perjury; that Ervin failed to object to or
seek clarification of the scope of the immunity agreement; and that, regardless,
Ervin failed to demonstrate prejudice in part because the jurors were fully aware of
the immunity grant. People v. Ervin, 990 P.2d 506, 523–24 (Cal. 2000).
We see no error in the California Supreme Court’s conclusion. Even if the
immunity grant was overbroad and Ervin’s claim is not procedurally defaulted,
Ervin has not demonstrated that the allegedly perjured testimony had a “substantial
and injurious” effect on the verdict resulting in “actual prejudice.” Brecht v.
Abrahamson, 507 U.S. 619, 637 (1993) (citations omitted); see also Davis v.
Ayala, 576 U.S. 257, 268–70 (2015) (“[T]he Brecht standard ‘subsumes’ the
requirements that § 2254(d) imposes when a federal habeas petitioner contests a
state court’s determination that a constitutional error was harmless . . . .” (citation
omitted)).
Despite Ervin’s contention that “[h]ad the jury known the truth, the case
would have fallen apart,” the jury here was informed of the immunity deal,
including that “Jack would not be prosecuted for any perjury based upon any
testimony given at this trial.” As the California Supreme Court noted, the defense
extensively cross-examined Jack and repeatedly emphasized that he could not be
trusted because of his immunity for perjury. Ervin, 990 P.2d at 523. Moreover,
3 ample physical evidence supported Ervin’s guilt independent of Jack’s testimony.
See id. at 514. Thus, the California Supreme Court’s denial of Ervin’s request for
relief based on the immunity agreement was not objectively unreasonable.
2. Jury Deliberations
Ervin next contends that racial animus permeated jury deliberations. In
2005, the California Supreme Court summarily denied his claim. At the time, both
federal and state law prohibited evidence of jury deliberations or a juror’s thought
processes. In 2017, the U.S. Supreme Court recognized an exception where it is
clear a juror “relied on racial stereotypes or animus to convict a criminal
defendant.” Peña-Rodriguez v. Colorado, 137 S. Ct. 855, 869 (2017). Even
assuming Peña-Rodriguez applies retroactively, however, Ervin has not
demonstrated “overt racial bias that cast[s] serious doubt on the fairness and
impartiality of the jury’s deliberations and resulting verdict.” Id.
Ervin relies largely on juror declarations and statements made to a defense
investigator to demonstrate racial animus. Ervin contends that the declarations and
statements show that “racial divide . . . infected the case,” and he points to certain
jurors’ statements and evidence of a “devil’s bargain”—in which the jury was
originally divided along racial lines on whether to impose capital punishment on
Ervin, who is black, or his co-defendant Robert McDonald, who was white—as
proof. Ervin cannot show, however, that any alleged racial animus was a
4 “significant motivating factor” in any juror’s vote to convict. Id. The record also
indicates the jury decided each defendant’s sentence based on his perceived moral
culpability, and indeed, the same jury gave Ervin’s other co-defendant, Arestes
Robinson, who is black, a life sentence. Ervin, 990 P.2d at 514. Thus, Ervin’s
evidence of racial animus does not rise to the level required for habeas relief. See
Peña-Rodriguez, 137 S. Ct. at 869 (“Not every offhand comment indicating racial
bias or hostility will justify setting aside the no-impeachment bar to allow further
judicial inquiry.”).
3. Ineffective Assistance of Counsel (“IAC”)
Ervin also argues that his counsel was prejudicially ineffective during the
sentencing phase. To prevail on an IAC claim, Ervin must demonstrate his
counsel’s representation (1) “fell below an objective standard of reasonableness,”
and (2) “that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Strickland v.
Washington, 466 U.S. 668, 688, 694 (1984). Under AEDPA, our review is
“doubly” deferential, and we must not conflate “unreasonableness under Strickland
with unreasonableness under § 2254(d),” but rather consider whether there is “any
reasonable argument that counsel satisfied Strickland’s deferential standard.”
Harrington v. Richter, 562 U.S. 86, 105 (2011).
Ervin contends his trial counsel failed to conduct an adequate investigation
5 into his childhood and mental health, and that his counsel’s failure to uncover and
present such mitigating evidence prejudicially affected his sentence. Specifically,
Ervin argues that a proper investigation would have revealed evidence that he
suffered from toxic chemical exposure and childhood head trauma that damaged
his brain and impaired his ability to appreciate the criminality of his conduct. Had
these impairments been presented, Ervin contends there is a reasonable probability
the jury would have given him a life sentence. The California Supreme Court
summarily denied Ervin’s claim.
Even if we assume Ervin can show his attorney’s performance was deficient,
he cannot demonstrate it was prejudicial. Given the evidence that Ervin was a key
motivator in the murder-for-hire plot, and that the murder was the result of days of
planning and preparation, we do not think there is a reasonable probability that, but
for the presentation of above mitigating evidence, Ervin would have received a
different sentence. See Strickland, 466 U.S. at 694; see also Shinn v. Kayer, 141 S.
Ct. 517, 525 (2020) (per curiam) (noting that fair-minded jurists can disagree
whether evidence of mental impairment is “overwhelming” in light of other
evidence showing “control and intentionality,” including that the defendant
planned the murder, hid the body, and profited from the crime (citation omitted)).
The fact that the jury gave Robinson a lesser sentence after hearing evidence of his
mental impairment is also insufficient to “undermine confidence in [Ervin’s
6 sentence],” Strickland, 466 U.S. at 694, as Ervin and Robinson had different
backgrounds and played different roles in the murder. Thus, the California
Supreme Court’s denial of Ervin’s IAC claim was not objectively unreasonable
under § 2254(d).
AFFIRMED.