(DP) Dickey v. Davis

• Court: District Court, E.D. California
• Decided: September 13, 2019
• Docket: 1:06-cv-00357
• Status: Unknown

Opinion

8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10

11 COLIN RAKER DICKEY, Case No. 1:06-cv-00357-AWI-SAB 12 Petitioner, DEATH PENALTY CASE 13 v. MEMORANDUM AND ORDER: 14 RON DAVIS, Warden of San Quentin State (1) DENYING PENALTY PHASE CLAIMS, Prison, (2) DENYING PETITION FOR WRIT OF 15 HABEAS CORPUS, (3) ISSUING A Respondent.1 CERTIFICATE OF APPEALABILITY FOR 16 CLAIMS I, II(E), II(I), V, and XIII, and (4) DENYING AS MOOT PETITIONER’S 17 MOTION FOR STAY, ENTRY OF PARTIAL JUDGMENT, and for CERTIFICATES OF 18 APPEALABILITY 19 (Doc. Nos. 51, 51-1, 145) 20 CLERK TO VACATE ANY AND ALL SCHEDULED DATES AND SUBSTITUTE 21 RON DAVIS AS RESPONDENT WARDEN AND ENTER JUDGMENT 22

25 Petitioner Colin Raker Dickey is a state prisoner, sentenced to death, proceeding with a

26 petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. He is represented in this 27 1 Pursuant to Fed. R. Civ. P. 25(d), Ron Davis, warden of San Quentin State Prison, is substituted as Respondent in place of his predecessor wardens. 28 1 1 action by appointed counsel David Senior, Ann Tria and Matthew Weston.

2 Respondent Ron Davis is named as Warden of San Quentin State Prison. He is 3 represented in this action by Justain Riley of the Office of the California Attorney General.

4 Before the Court for decision are: (i) the petition (Doc. Nos. 51, 51-1); (ii) record based 5 penalty phase claims II(I), II(U), III(A), III(B), III(C), III(D), III(E), III(F), III(G), III(H), V,

6 VI, VII, IX, X, XI, XII(D), XII(E), XII(F), XII(G), XII(H), XX, XXV(A), XXV(B), XXV(C),

7 XXV(D), XXV(E), XXV(F), XXV(G), XXV(H), XXV(I), XXV(J), XXV(K), XXV(L),

8 XXVII, and XXIX (id.); and (iii) Petitioner’s motion filed April 29, 2019 seeking stay of

9 penalty phase claims, entry of partial judgment on the previously denied guilt phase claims,

10 and issuance of Certificate of Appealability on claims I, II, XII-XIX, and XXI (Doc. No. 145).

11 Having previously denied guilt phase claims I, II (portions), IV, VIII, XII (portions), 12 XIII, XIV, XV, XVI, XVII, XVIII, XIX, XXI, XXII, XXIII, XXIV, XXVI, and XXVIII (see

13 Doc. No. 135), and upon careful review of the parties’ filings and the relevant case law and for

14 the reasons set out below, the undersigned finds that: (i) the penalty phase claims shall be

15 denied on the merits, (ii) the petition for writ of habeas corpus shall be denied, (iii) Petitioner’s

16 pending motion for stay of penalty phase claims and entry of partial judgment on guilt claims

17 shall be denied as moot, and (iv) Certificate of Appealability shall issue only for claims I, II(E),

18 II(I), V, and XIII.

19 I. BACKGROUND 20 Petitioner was charged in Fresno County with: counts 1 and 2 for murder (Penal Code § 21 187); counts 3 and 4 for robbery (Penal Code § 211); count 5 for burglary (Penal Code §§

22 459/460); special circumstances of felony-murder robbery, felony-murder burglary, and

23 multiple murder (Penal Code §§ 190.2(a)(3), (17), 211, 459/460); and aider and abettor liability

24 (Penal Code § 190.2(b)).2 (RT 122-26; CT 297-301, 303-307.) Petitioner pleaded not guilty to

25 all the charges. (RT 126; CT 232, 302.)

26 Petitioner’s jury trial began on January 7, 1991 in Fresno County Case No. 416903-3. 27

28 2 Reference to state law is to California law unless otherwise noted. 2 1 (CT 295-296.) On March 15, 1991, the jury found Petitioner guilty of the murders of Marie

2 Caton and Louis Freiri with special circumstances of felony-murder robbery and felony-murder

3 burglary and multiple murder; and found Petitioner guilty of first-degree robbery of each

4 victim and first-degree burglary of their residence. (Case No. 416903-3; see also CT 380-385,

5 463-468, 610-614.)

6 On March 19, 1991, Petitioner admitted a prior felony conviction (CT 472) and waived 7 personal presence at the penalty phase. (CT 472-476.) On March 22, 1991, the jury returned a

8 penalty phase verdict of death. (CT 478-482, 504.)

9 On March 26, 1991, the trial court appointed Katherine Hart to represent Petitioner on 10 motions for new trial and to modify the verdict due to Petitioner’s dissatisfaction with lead trial

11 counsel Marvin Schultz (hereinafter “Schultz”) expressed following the guilt phase verdict.3

12 (CT 505; RT 5181-87.)

13 Ms. Hart raised issues of insufficiency of evidence, prosecutorial misconduct, 14 instructional error, Petitioner’s erroneous admission of his prior felony conviction, trial court

15 error and ineffective assistance of counsel at the guilt and penalty phases. (CT 525-589.) The

16 motion for new trial was denied on January 17, 1992. (CT 516-518.) The motion for 17 modification of the verdict was denied on February 21, 1992 and Petitioner was sentenced to

18 death. (CT 609-615; Feb. 21, 1992 Transcript, at 50.)4

19 On April 14, 2003, Petitioner filed his first state habeas petition, (hereinafter “SHCP”) 20 In re Dickey, S115079 (Lod. Doc. 7), which the California Supreme Court summarily denied

21 on November 30, 2005. (Lod. Doc. 10.)

22 The California Supreme Court affirmed Petitioner’s conviction on direct appeal on May 23 23, 2005. People v. Dickey, 35 Cal. 4th 884 (2005). That court denied Petitioner’s request for

24 rehearing on July 13, 2005. People v. Dickey, California Supreme Court Case No. S025519.

25 3 Schultz was sometimes assisted by Fresno County deputy public defender Ann Burtner. (See Pet. Ex. 23 at SH002051.) 26 4 Unless otherwise indicated, throughout this order, “CT” refers to the clerk’s transcript on appeal; “SCT” refers to the supplemental clerk’s transcript on appeal; “RT” refers to the reporter’s transcript on appeal; and “CRT” refers 27 to the corrected reporter’s transcript on appeal. Other transcripts are referenced by date. References to page numbering are to internal page numbering in the original documents except that ECF system numbering is used 28 for electronically filed documents and Bates numbering is used for the CT and SCT. 3 1 On February 21, 2006, the United States Supreme Court denied Petitioner’s writ of 2 certiorari. Dickey v. California, 546 U.S. 1177 (2006).

3 On March 30, 2006, Petitioner began this federal habeas proceeding under 28 U.S.C. § 4 2254 by filing a combined request for appointment of counsel and temporary stay of execution.

5 (Doc. Nos. 1 & 2.)

6 On October 4, 2007, Petitioner filed his federal petition for writ of habeas corpus 7 (hereinafter “Petition”). (Doc. No. 51, 51-1.)

8 On May 21, 2008, this Court ordered federal proceedings held in abeyance pending 9 state exhaustion of certain claims. (Doc. No. 69.)

10 On July 21, 2008, Petitioner filed his second state habeas petition (hereinafter 11 “SSHCP”), In re Dickey, S165302. (Lod. Doc. 30.) On May 23, 2012, the California Supreme

12 Court summarily denied the second state petition on the merits as to all claim and on

13 procedural grounds as to certain claims, Order Denying Cal. Pet., In re Colin Raker Dickey,

14 No. S165302 (May 29, 2012). (Lod. Doc. 31.)

15 Respondent filed his answer in this proceeding (Doc. No. 103) and amended answer 16 correcting clerical error (Doc. No. 105), on August 29, 2013. Therein Respondent admitted the

17 jurisdictional allegations and asserted exhaustion and procedural defenses and denied all claims

18 1 through 29.5

19 On November 18, 2013, this Court ordered bifurcated briefing with the guilt phase 20 claims briefed separately from and prior to the penalty phase claims. (Doc. No. 111.)

21 On April 16, 2014, Petitioner filed his brief in support of guilt phase claims including 22 request for factual development. (Doc. No. 116.)

23 On September 10, 2014, Respondent filed a second amended answer as his brief in 24 response to Petitioner’s brief. (Doc. No. 125.)

25 On November 7, 2014, Petitioner filed his brief in reply to Respondent’s brief including 26 request that Respondent’s second amended answer be stricken and for further factual 27

28 5 The amended answer is the operative answer. (See Doc. No. 114 at 1:20-21.) 4 1 development. (Doc. No. 128.)

2 On January 13, 2017, the Court denied Petitioner’s requests to strike the second 3 amended answer and for factual development of certain guilt phase claims and denied on the

4 merits the noted guilt phase claims. (Doc. No. 135.)

5 On February 17, 2017, the Court scheduled briefing of the penalty phase claims. (Doc. 6 No. 139.)

7 On April 17, 2017, Petitioner filed his penalty phase merits brief. (Doc. No. 142.) 8 On June 19, 2017, Respondent filed his penalty phase merits brief in opposition. (Doc. 9 No. 143.)

10 On July 17, 2017, Petitioner filed his brief in reply to the opposition. (Doc. No. 144.) 11 On April 29, 2019, Petitioner filed his noted motion for stay of penalty phase claims, 12 entry of partial judgment on guilt phase claims, and partial Certificate of Appealability. (Doc.

13 No. 145.) Respondent filed his response to the motion on June 27, 2019. (Doc. No. 147.)

14 Petitioner replied to the response on June 28, 2019. (Doc. No. 148.)

15 On July 8, 2019, the Court vacated the July 15, 2019 hearing on the motion and took 16 the matter under submission. (Doc. No. 149.)

17 No date has been set for Petitioner’s execution. 18 II. STATEMENT OF FACTS 19 The following factual summary is taken from the California Supreme Court’s opinion 20 in People v. Dickey, 35 Cal. 4th 884 (2005), and is presumed correct. 28 U.S.C. § 2254(d)(2),

21 (e)(1). Petitioner does not present clear and convincing evidence to the contrary; thus, the

22 court adopts the factual recitations set forth by the state court. See Vasquez v. Kirkland, 572

23 F.3d 1029, 1031 n.1 (9th Cir. 2009) (“We rely on the state appellate court’s decision for our

24 summary of the facts of the crime.”). I. Facts 25

26 A. Guilt Phase

27 1. The Prosecution Case

28 5 The murder victims were Fresno residents—Marie Caton, 76, and Louis Freiri, 1 67, a friend and boarder of Mrs. Caton's. Their bodies were discovered by one of Mrs. Caton's daughters, Lavelle Garratt. Mrs. Garratt or her sister checked on 2 their mother every day, “[b]ecause she was lonely, because she was our mother, because we loved her and we wanted to see her.” 3 Late in the afternoon of November 8, 1988, when Mrs. Garratt could not reach 4 her mother by telephone, she drove to her house. She found Mrs. Caton on the floor of her bedroom, covered with a bloodstained blanket. Mrs. Caton had been 5 beaten so badly her eyes bulged out of their sockets like golf balls. Mrs. Caton also had knife wounds on her chest and a jagged cut on her back. She lingered 6 for 11 days, but never regained consciousness. The cause of death was respiratory failure associated with “shock lung syndrome,” the shock having 7 been caused by her injuries. 8 Mr. Freiri wore a brace on his right leg and required a cane. Mrs. Garratt found him facedown, stretched across the archway between the dining room and the 9 living room. A chair, wall, and window blinds near his body were bloodstained. Pieces of his cane were found in the living room and one of the bedrooms. Mr. 10 Freiri had been stabbed in the chest, armpit, and forearm; he also had a bone- deep laceration on his forehead. He was stabbed with such force that two of his 11 ribs were broken. He died of blood loss. 12 Mrs. Garratt told the police she suspected her son, Richard Cullumber. Cullumber was, Mrs. Garratt believed, a drug addict, and he asked his 13 grandmother Mrs. Caton for money—cash she would take out of a buffet drawer—almost every day. Mrs. Caton “grew up during the Depression and she 14 was afraid of being hungry again, I guess, and so she hid money all over.” Among other caches, Mrs. Caton kept at least $6,000 in cash in a metal box 15 placed inside a suitcase stored under her bed. She also kept a smaller sum in another suitcase. 16 Cullumber, also known as “R.C.,” lived in an apartment in Fresno, along with 17 defendant, Gail Goldman, Richard Buchanan, and two other men. The night of the murders Cullumber packed his bag and left the apartment. He returned 18 several days later but fled again when informed the police were looking for him. On November 12, 1988, after a high-speed police chase, Cullumber, cornered, 19 killed himself. 20 The pistol Cullumber used to shoot himself was registered to Mr. Freiri. He had earlier warned the driver of a car he commandeered, “I need the car; I've already 21 killed a woman.” 22 Two knives possibly linked to the murders were discovered in Mrs. Caton's kitchen—a butcher knife and a steak knife. The steak knife (People's exhibit No. 23 18) was, in the opinion of defendant's housemates Gail Goldman and Richard Buchanan, identical to a knife belonging in their apartment. 24 In addition to his knife wounds, Mr. Freiri had a four-inch-long ligature wound, 25 caused by a cord that was wrapped around his neck. It was a cotton cord of the color, weave, and texture used in venetian blinds. The venetian blinds in Mrs. 26 Caton's house were intact, but a venetian blind kept in the hall closet of the apartment defendant shared with Cullumber and the others was missing its cord. 27 On the night of the murders, Gene Buchanan saw defendant remove a venetian blind from the closet of their apartment, walk into the bedroom with it, and then 28 6 replace it in the closet. Goldman testified it was Cullumber who had done that. 1 Defendant's thumbprint was found on a slat from the venetian blind found by the police in the apartment closet. n.2. 2 ----------------------------------------FOOTNOTE----------------------- 3 n.2 No usable prints were found at the scene of the crime, not even those of 4 Mrs. Caton or Mr. Freiri. 5 --------------------------------------END FOOTNOTE------------------ 6 The case against defendant rested on the testimony of Gail Goldman and Gene Buchanan. n.3. 7 ----------------------------------------FOOTNOTE----------------------- 8 n.3 Defendant impeached Buchanan on the grounds, among others, that his 9 testimony against defendant was motivated by revenge and a desire to collect the reward offered by Mrs. Caton’s relatives. Defendant was less successful in 10 attacking Goldman’s credibility. If not a hostile witness for the prosecution, she was clearly reluctant to testify against defendant, both because she was fond of 11 him and because she feared the consequences of informing on anyone. A critical question, then, is to what extent Goldman’s testimony corroborates Buchanan’s. 12 To facilitate consideration of that question, we have set out their testimony separately. 13 --------------------------------------END FOOTNOTE------------------ 14 a) The Testimony of Gail Goldman. n.4. 15 ----------------------------------------FOOTNOTE----------------------- 16 n.4 Because she died before the trial began, Goldman’s preliminary hearing 17 testimony was read into the record. (See Evid. Code, § 240, subd. (a)(3).) 18 --------------------------------------END FOOTNOTE------------------ 19 Goldman shared a one-bedroom apartment in Fresno with defendant, 20 Cullumber, Buchanan, and two other men. According to Detective Doug Stokes, Goldman told him “about a venetian blind that had been in the hall closet that 21 was ... taken by the suspect, Dickey, ... into a bedroom and that the cord was removed from that venetian blind and then the venetian blind was placed back 22 inside the hall closet.” However, when she testified, Goldman said it was Cullumber who took the venetian blind out of the closet and went into the 23 bedroom with it. Later, she testified, the blind had been replaced in the closet, but the cord was missing from a blind in the bedroom. 24 At approximately the same time that Cullumber was engaged with the venetian 25 blind, defendant walked into the kitchen and opened a drawer containing knives and other silverware. n.5 According to Detective Stokes, Goldman told him 26 defendant removed a knife from the drawer and left the kitchen with it. Again according to Detective Stokes, when he came to the apartment investigating the 27 murders, he showed Goldman a knife. She told him, “I have a knife exactly like that knife, or they are twins.” 28 7 1 ----------------------------------------FOOTNOTE--------------------- 2 n.5 Goldman later testified she did not know which drawer defendant had opened. 3 ------------------------------------END FOOTNOTE------------------ 4 After the activity just described, Goldman testified, defendant and Cullumber 5 left the apartment. They had no money, Goldman believed, when they left. If Cullumber had money, he spent it on drugs; before defendant left he asked 6 Goldman for money to buy cigarettes. However, when they returned, Cullumber gave Goldman $40 or $50 in cash, saying it was in partial payment of what he 7 owed her. Cullumber then packed his clothes and left. 8 Sometime thereafter, while Goldman and defendant were watching the news on television, they saw a story about this crime. Defendant became upset when he 9 learned Mr. Freiri was dead and that Mrs. Caton, while near death, was still alive. He told Goldman to come into the bedroom, that he wanted to talk to her. 10 Buchanan followed them into the bedroom. 11 Defendant told them he had accompanied Cullumber to the home of Mrs. Caton. On the one hand, defendant said that Cullumber had assured him “nothing was 12 going to happen.” On the other hand, defendant admitted he had gone with Cullumber “[t]o help [him] get the money.” With Mrs. Caton present, defendant 13 looked for money in her bedroom, where Cullumber told him it could be found. When defendant stepped out of the bedroom and saw Mr. Freiri slumped over in 14 a chair, he “knew something had happened.” Cullumber “went berserk. He came into the bedroom and started beating up on his grandmother.” Defendant 15 and Cullumber found $700, which they split. 16 Defendant was crying, “like he was sad,” when he confessed to Goldman and Buchanan. Later, when defendant learned Mrs. Caton had died, “he wasn't as 17 depressed as he was before.” 18 While he was confessing, defendant said maybe he should turn himself in. Goldman advised him against it. When Detective Stokes first asked Goldman 19 whether she knew anything about these crimes, Goldman denied that she did. Defendant was a good friend of hers, she still liked him, and she did not want to 20 do anything to get him into trouble. She did not want to tell on anyone, especially someone she liked as much as she liked defendant. Buchanan told her 21 he was going to turn defendant in for the reward. By contrast, Goldman testified at the preliminary hearing only because she had been subpoenaed. During a 22 break, Goldman told the prosecutor she wanted to make sure defendant knew she was not the one who turned him in. She was afraid for her life. “I always felt 23 that if you would inform on somebody they would kill you or have you killed.” 24 Defendant said he was not concerned that someone would betray him, “because if they did, they wouldn't do it again.” On the other hand, Goldman thought that 25 her relationship with defendant was such that “it would take an awful lot to make him hurt me.” 26 Goldman had “had 20 surgeries on [her] stomach,” and depending on how much 27 pain she was in, she used “speed ball cocaine and heroin” or other “street drugs” to kill the pain. 28 8 1 b) The Testimony of Gene Buchanan 2 One evening in November 1988, defendant took a venetian blind from the hall closet of the apartment he shared with Buchanan, Cullumber, Goldman, and two 3 others. Defendant took the blind into the bedroom and shortly thereafter replaced it in the closet. Buchanan looked into the bedroom. On the bed was a 4 knife belonging to Gail Goldman, a knife with a bone handle and a serrated edge. People's exhibit No. 18 was that knife, or else it looked exactly like 5 Goldman's knife. 6 Defendant and Cullumber left the apartment around 9:00 p.m. That night everyone living in the apartment was broke, or claimed to be. However, when 7 defendant and Cullumber returned, defendant opened his wallet and said, “I got $350,” and, “call the connection.” 8 Buchanan ordered drugs, which were injected by defendant, Cullumber, 9 Goldman, and Buchanan. Afterwards, Cullumber asked Buchanan to take him for a drive; defendant went along. Defendant directed Buchanan to a canal, and 10 as they drove over it, defendant threw in a pair of shoes. After looking for a good place to do it, defendant also threw his jacket out of the window. 11 About two days later, Buchanan and defendant were in the living room of the 12 apartment; defendant was watching the news on television. Defendant jumped up and ran into the bedroom to Goldman. Buchanan heard Goldman say, “ ‘Oh, 13 my God, how low can you go,’ or ‘get’; something to that effect.” Buchanan went into the bedroom to find out what was going on. Defendant said to him, 14 “I've already told her, so I might as well tell you.” 15 Defendant told Buchanan that “him and R.C. had been over to R.C.'s grandmother's house, and that they had entered the house—how he had done it, 16 how he had walked up to the door, knocked, faked like R.C. was going to be in jail, needed to use the phone, and then R.C. sneaked in, they were supposed to 17 tie them up, get this money and everything. And while the defendant is supposedly in the bedroom looking for the money he hears a commotion, looked 18 out the bedroom door, sees an elderly man with his head slumped down, considers him dead, and that if you kill one you might as well kill them both.” 19 In response to the prosecutor's questions, Buchanan clarified his testimony. 20 “[Defendant] said that he—only what he thought, he didn't say what he did. He said that, ‘If you kill one you might as well kill them both.’ ” “[H]e didn't say he 21 said it to R.C., he just said it as that was his opinion.” Defendant did not tell Buchanan what happened after he had this thought. 22 Defendant also told Buchanan that what prompted his confession was a 23 television story saying that Mrs. Caton “was still alive when she should have been dead.” 24 Buchanan did not speak to the police until several months after defendant's 25 confession to him. At a convenience store he saw a flyer announcing a reward, and he left his name with the clerk. He was then contacted by a grandson of 26 Mrs. Caton's, and he agreed to speak to Detective Stokes. However, his willingness to do so was not motivated by the reward; it was his “Christian 27 upbringing.” He did not tell Goldman he was going to turn defendant in for the reward. 28 9 1 Defendant had torn up Buchanan's one photograph of his youngest daughter, which made Buchanan angry. He wanted to throw defendant off the balcony of 2 a motel, but Goldman stopped him. 3 Buchanan used drugs “[a]s often as I can get them.” He injected “speedballs,” a heroin/cocaine mixture. He used drugs an hour or two before defendant 4 confessed to him, and he continued to do so as recently as the day before his testimony. 5 2. The Defense Case 6 Defendant testified he did not make the statements attributed to him by 7 Goldman and Buchanan, and that he did not have anything to do with these crimes. He got along well with Goldman, but not with Buchanan, who was “just 8 a snake; a deceitful person.” His fingerprint was on the venetian blind because it had fallen off the back door and he had put it into the closet; he did not know 9 why the cord was missing from it. He did rip up the photograph of Buchanan's daughter. 10 John Inderrienden had known Goldman for five or six years, and they had once 11 lived in the same apartment building. He “wouldn't trust her as far as I could throw her, and she weighed quite a bit.” 12 Goldman once lived in a house owned by Harry Arax. She did not pay her rent, 13 nor did she pay her bill at his market. 14 Goldman, a former neighbor of Peter Najarian's, told him she was going to be a witness in a murder case, but that she “didn't know nothing about no murder.” 15 Magadelena Desumala, who ran a halfway house in which Goldman lived on 16 and off for about 10 years, was “like a sister” to Goldman. She said Goldman told her it was the grandson of the murder victim who had confessed to her. 17 B. Penalty Phase 18 The only witness who testified at the penalty phase, Detective Stokes, was 19 called by the prosecution to provide a foundation for the admission of the autopsy photographs. No other evidence, aside from a stipulation to defendant's 20 prior burglary conviction, was introduced. 21 Dickey, 35 Cal. 4th at 894-900.

22 III. JURISDICTION 23 Relief by way of a petition for writ of habeas corpus extends to a person in custody 24 pursuant to the judgment of a state court if the custody is in violation of the Constitution or

25 laws or treaties of the United States. 28 U.S.C. §§ 2241(c)(3), 2254(a); Williams v. Taylor, 529

26 U.S. 362, 375 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed 27 by the U.S. Constitution. The challenged conviction arises out of Fresno County Superior

28 10 1 Court, which is located within the jurisdiction of this Court. 28 U.S.C. §§ 2241(d), 2254(a).

2 This action was initiated after April 24, 1996. Therefore, the amendments to 28 U.S.C. 3 § 2254 enacted as part of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),

4 110 Stat. 1214, apply. Lindh v. Murphy, 521 U.S. 320, 336 (1997); see also Van Tran v.

5 Lindsey, 212 F.3d 1143, 1148 (9th Cir. 2000), overruled on other grounds by Lockyer v.

6 Andrade, 538 U.S. 63, 71 (2003); Mann v. Ryan, 828 F.3d 1143, 1151 (9th Cir. 2016).

7 IV. STANDARDS OF REVIEW 8 A. Habeas Corpus 9 Under AEDPA, relitigation of any claim adjudicated on the merits in state court is 10 barred unless a petitioner can show that the state court’s adjudication of his claim:

11 (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme 12 Court of the United States; or 13 (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 14

15 28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. 86, 98 (2011); Lockyer, 538 U.S. at 70-

16 71; Williams, 529 U.S. at 413.

17 “[A] state has ‘adjudicated’ a petitioner’s constitutional claim ‘on the merits’ for 18 purposes of § 2254(d) when it has decided the petitioner’s right to post-conviction relief on the

19 basis of substance of the constitutional claim advanced, rather than denying the claim on the 20 basis of a procedural or other rule precluding state court review of the merits.” Brown v.

21 Walker, Case No. C 09-04663 JSW, 2014 WL 4757804, at *5 (N.D. Cal. Sept. 24, 2014)

22 (citing Lambert v. Blodgett, 393 F.3d 943, 969 (9th Cir. 2004)).

23 As a threshold matter, this Court must “first decide what constitutes ‘clearly established 24 Federal law, as determined by the Supreme Court of the United States.’” Lockyer, 538 U.S. at

25 71 (quoting 28 U.S.C. § 2254(d)(1)). In ascertaining what is “clearly established Federal law,”

26 this Court must look to the “holdings, as opposed to the dicta, of [the Supreme Court’s] 27 decisions as of the time of the relevant state-court decision.” Williams, 529 U.S. at 412. “In

28 11 1 other words, ‘clearly established Federal law’ under § 2254(d)(1) is the governing legal

2 principle or principles set forth by the Supreme Court at the time the state court renders its

3 decision.” Id. In addition, the Supreme Court decision must “‘squarely address [] the issue in

4 th[e] case’; otherwise, there is no clearly established Federal law for purposes of review under

5 AEDPA.” Moses v. Payne, 555 F.3d 742, 754 (9th Cir. 2009) (quoting Wright v. Van Patten,

6 552 U.S. 120, 125 (2008)); see also Panetti v. Quarterman, 551 U.S. 930, 949 (2007); Carey v.

7 Musladin, 549 U.S. 70, 77 (2006).

8 If no clearly established Federal law exists, the inquiry is at an end and the Court must 9 defer to the state court’s decision. Musladin, 549 U.S. at 77; Wright, 552 U.S. at 126; Moses,

10 555 F.3d, at 760. In addition, the Supreme Court has clarified that habeas relief is unavailable

11 in instances where a state court arguably refuses to extend a governing legal principle to a

12 context in which the principle should have controlled. White v. Woodall, 572 U.S. 415, 426

13 (2014). The Supreme Court stated: “[I]f a habeas court must extend a rationale before it can

14 apply to the facts at hand, then by definition the rationale was not clearly established at the

15 time of the state-court decision.” Id. (quoting Yarborough v. Alvarado, 541 U.S. 652, 666

16 (2004)).

17 If the Court determines there is governing, clearly established Federal law, the Court 18 must then consider whether the state court’s decision was “contrary to, or involved an

19 unreasonable application of, [the] clearly established Federal law.” Lockyer, 538 U.S. at 72 20 (quoting 28 U.S.C. § 2254(d)(1)). “Under the ‘contrary to’ clause, a federal habeas court may

21 grant the writ if the state court arrives at a conclusion opposite to that reached by [the

22 Supreme] Court on a question of law or if the state court decides a case differently than [the]

23 Court has on a set of materially indistinguishable facts.” Williams, 529 U.S. at 412-13; see

24 also Lockyer, 538 U.S. at 72. “The word ‘contrary’ is commonly understood to mean 25 ‘diametrically different,’ ‘opposite in character or nature,’ or ‘mutually opposed.’” Williams,

26 529 U.S. at 405 (quoting Webster’s Third New International Dictionary (1976)). “A state- 27 court decision will certainly be contrary to [Supreme Court] clearly established precedent if the

28 12 1 state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases.”

2 Id.

3 “Under the ‘reasonable application clause,’ a federal habeas court may grant the writ if 4 the state court identifies the correct governing legal principle from [the] Court’s decisions but

5 unreasonably applies that principle to the facts of the prisoner’s case.” Williams, 529 U.S. at

6 413. “[A] federal court may not issue the writ simply because the court concludes in its

7 independent judgment that the relevant state court decision applied clearly established federal

8 law erroneously or incorrectly. Rather, that application must also be unreasonable.” Id. at 411;

9 see also Lockyer, 538 U.S. at 75-76. “A state court’s determination that a claim lacks merit

10 precludes federal habeas relief so long as fair-minded jurists could disagree on the correctness

11 of the state court’s decision.” Richter, 562 U.S. at 101 (citing Yarborough, 541 U.S. at 664).

12 The Supreme Court stated:

13 As a condition for obtaining habeas corpus from a federal court, a state prisoner 14 must show that the state court’s ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and 15 comprehended in existing law beyond any possibility for fair-minded disagreement. 16

17 Id. at 103. In other words, so long as fair-minded jurists could disagree on the correctness of

18 the state courts decision, the decision cannot be considered unreasonable. Id. at 101. In

19 applying this standard, “a habeas court must determine what arguments or theories supported [. 20 . .] or could have supported the state court’s decision; and then it must ask whether it is

21 possible fair-minded jurists could disagree that those arguments or theories are inconsistent

22 with the holding in a prior decision of [the Supreme Court].” Id. at 102. This objective

23 standard of reasonableness applies to review under both subsections of 28 U.S.C. § 2254(d).

24 See Hibbler v. Benedetti, 693 F.3d 1140, 1146-47 (9th Cir. 2012). If the Court determines that

25 the state court decision is objectively unreasonable, and the error is not structural, habeas relief

26 is nonetheless unavailable unless the error had a “substantial and injurious effect or influence” 27 in determining the jury’s verdict. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993); see also

28 13 1 Fry v. Pliler, 551 U.S. 112, 114 (2007).

2 Petitioner has the burden of establishing that the decision of the state court is contrary 3 to or involved an unreasonable application of United States Supreme Court precedent. Baylor

4 v. Estelle, 94 F.3d 1321, 1325 (9th Cir. 1996). Although only Supreme Court law is binding on

5 the states, Ninth Circuit precedent remains relevant persuasive authority in determining

6 whether a state court decision is objectively unreasonable. See LaJoie v. Thompson, 217 F.3d

7 663, 669 n.6 (9th Cir. 2000); Duhaime v. Ducharme, 200 F.3d 597, 600-01 (9th Cir. 1999).

8 AEDPA requires considerable deference to the state courts. “[R]eview under § 9 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on

10 the merits,” Cullen v. Pinholster, 563 U.S. 170, 181 (2011), and “evidence introduced in

11 federal court has no bearing on 2254(d)(1) review.” Id. at 185. “Factual determinations by

12 state courts are presumed correct absent clear and convincing evidence to the contrary.”

13 Miller-El v. Cockrell, 537 U.S. 322, 340 (2003) (citing 28 U.S.C. § 2254(e)(1)). However, a

14 state court factual finding is not entitled to deference if the relevant state court record is

15 unavailable for the federal court to review. Townsend v. Sain, 372 U.S. 293, 319 (1963),

16 overruled on other grounds by Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992), superseded by

17 statute as stated in Williams, 529 U.S. at 433-34.

18 If a petitioner satisfies either subsection (1) or (2) for a claim, then the federal court 19 considers that claim de novo. See Panetti, 551 U.S. at 953 (when § 2254(d) is satisfied, “a 20 federal court must then resolve the claim without the deference AEDPA otherwise requires.”);

21 see also Frantz v. Hazey, 533 F.3d 724, 737 (9th Cir. 2008) (same).

22 In this case, some of Petitioner’s claims and allegations were raised and rejected by the 23 California Supreme Court on direct appeal while others were raised in his state habeas petitions

24 to that court and summarily denied on the merits.

25 In the latter case of summary denial, where the state court decision is unaccompanied 26 by an explanation, “the habeas petitioner’s burden still must be met by showing there was no 27 reasonable basis for the state court to deny relief.” Richter, 562 U.S. at 98. The Supreme

28 14 1 Court stated that “a habeas court must determine what arguments or theories supported or . . .

2 could have supported, the state court’s decision; and then it must ask whether it is possible fair-

3 minded jurists could disagree that those arguments or theories are inconsistent with the holding

4 in a prior decision of this Court.” Id. at 101-03. Petitioner bears “the burden to demonstrate

5 that ‘there was no reasonable basis for the state court to deny relief.’” Walker v. Martel, 709

6 F.3d 925, 939 (9th Cir. 2013) (quoting Richter, 562 U.S. at 98). “Crucially, this is not a de

7 novo review of the constitutional question,” id., as “even a strong case for relief does not mean

8 the state court’s contrary conclusion was unreasonable.” Id. (quoting Richter, 562 U.S. at

9 102); see also Murray v. Schriro, 745 F.3d 984, 996-97 (9th Cir. 2014).

10 When reviewing the California Supreme Court’s summary denial of a petition, this 11 Court must consider that the California Supreme Court’s summary denial of a habeas petition

12 on the merits reflects that court’s determination that:

13 [T]he claims made in th[e] petition do not state a prima facie case entitling the 14 petitioner to relief. It appears that the court generally assumes the allegations in the petition to be true, but does not accept wholly conclusory allegations, and 15 will also review the record of the trial ... to assess the merits of the petitioner’s claims. 16

17 Pinholster, 563 U.S. 181 n.12 (quoting In re Clark, 5 Cal. 4th 750, 770 (1993), superseded by

18 statute as stated in Briggs v. Brown, 3 Cal. 5th 808, 841, 845, 848 (2017)); see also Johnson v.

19 Williams, 568 U.S. 289, 300 (2013) (holding that even where the state court does not separately 20 discuss a federal claim there is a presumption that that state court adjudicated the federal claim

21 on the merits).

22 [A] federal court may not second-guess a state court’s fact-finding process 23 unless, after review of the state-court record, it determines that the state court was not merely wrong, but actually unreasonable.” Taylor v. Maddox, 366 F.3d 24 992, 999 (9th Cir. 2004), abrogated on other grounds by Murray v. Schriro, 745 F.3d 984, 999-1000 (9th Cir. 2014). Federal habeas courts have “no license to 25 redetermine credibility of witnesses whose demeanor has been observed by the state trial court, but not by them.” Marshall v. Lonberger, 459 U.S. 422, 434, 26 103 S.Ct. 843, 74 L.Ed.2d 646 (1983); accord Mann v. Ryan, 828 F.3d 1143, 1153 (9th Cir. 2016) [Citation]. 27

28 15 1 Navarro v. Holland, 698 F. App’x 541, 542 (9th Cir. 2017).

2 If this Court finds Petitioner has clearly made out a prima facie case for relief on a 3 claim, the state court’s summary rejection of that claim would be unreasonable. Nunes v.

4 Mueller, 350 F.3d 1045, 1054 (9th Cir. 2003).

5 For any habeas claim that has not been adjudicated on the merits by the state court, the 6 federal court reviews the claim de novo without the deference usually accorded state courts

7 under 28 U.S.C. § 2254(d)(1). Chaker v. Crogan, 428 F.3d 1215, 1221 (9th Cir. 2005); Pirtle

8 v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002). In such instances, however, the provisions of

9 28 U.S.C. § 2254(e) still apply. Pinholster, 563 U.S. 185 (“Section 2254(e)(2) continues to

10 have force where § 2254(d)(1) does not bar federal habeas relief.”); Pirtle, 313 F.3d, at 1167-

11 68 (stating that state court findings of fact are presumed correct under § 2254(e)(1) even if

12 legal review is de novo).

13 V. PROCEDURAL BARS 14 Certain of Petitioner’s claims were alternatively denied by the California Supreme 15 Court as procedurally barred. As to those claims, Respondent has invoked the independent

16 state ground doctrine, pursuant to which a federal court will not review a question of federal

17 law decided by a state court “if the decision of that court rests on a state law ground that is

18 independent of the federal question and adequate to support the judgment.” Vang v. Nevada,

19 329 F.3d 1069, 1072 (9th Cir. 2003) (quoting Coleman v. Thompson, 501 U.S. 722, 729 20 (1991)).

21 Since “cause and prejudice” can excuse a procedurally defaulted claim, Smith v. 22 Baldwin, 510 F.3d 1127, 1139 (9th Cir. 2007) (quoting Coleman, 501 U.S. at 750), and

23 “prejudice” essentially requires a merits analysis, the Court will proceed to the merits of claims

24 found to be procedurally defaulted without determining whether the state procedural default is

25 adequate and independent to bar relief in federal court. Id. (quoting Coleman, 501 U.S. 732-

26 35). 27 A district court may exercise discretion to proceed to the merits in advance of litigation 28 16 1 of procedural default. Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002) (courts

2 empowered to reach the merits if on their face the allegations are clearly not meritorious

3 despite asserted procedural bar); see also Bell v. Cone, 543 U.S. 447, 451 n.3 (2005) (an

4 application for habeas corpus may be denied on the merits even if unexhausted in state court);

5 Loggins v. Thomas, 654 F.3d 1204, 1215 (11th Cir. 2011) (relief may be denied on the merits

6 where petition is clearly not meritorious despite asserted procedural bar).6

7 VI. PRELIMINARY MATTERS 8 The Court takes judicial notice of the certified record on appeal to the California 9 Supreme Court, all documents on file in the California Supreme Court in the case of People v.

10 Colin Raker Dickey, California Supreme Court Case No. S025519 and all declarations, witness

11 statements, and records filed on Petitioner’s behalf in his state habeas corpus proceedings

12 before the California Supreme Court, In re Colin Dickey, California Supreme Court Case No.

13 S115079, and In re Colin Dickey, California Supreme Court Case No. S165302.

14 VII. REVIEW OF PENALTY PHASE CLAIMS 15 A. Claims Relating to Ineffective Assistance of Counsel 16 1. Legal Standards 17 The Sixth Amendment right to effective assistance of counsel, applicable to the states 18 through the Due Process Clause of the Fourteenth Amendment, applies through the sentencing

19 phase of a trial. See Murray, 745 F.3d, at 1010-11: U.S. Const. amend. VI; U.S. Const. amend. 20 XIV, § 1; Gideon v. Wainwright, 372 U.S. 335, 34345 (1963); Silva v. Woodford, 279 F.3d

21 825, 836 (9th Cir. 2002).

22 The Supreme Court explained the legal standard for assessing a claim of ineffective 23 assistance of counsel in Strickland v. Washington, 466 U.S. 668, 685-87 (1984). Strickland

24 propounded a two-prong test for analysis of claims of ineffective assistance of counsel. The

25 first prong focuses upon whether counsel performed deficiently. The second prong focuses

26 6 Respondent contends certain claims are not cognizable because they create and retroactively apply a “new rule” of constitutional law under Teague v. Lane, 489 U.S. 288 (1989). (See Doc. No. 105 at 27-28; Doc. No. 143 at 27 42-43.) Unless otherwise noted, the Court declines to address Respondent’s Teague arguments where the claim lacks merit. 28 17 1 upon whether the petitioner suffered prejudice from counsel’s deficient performance.

2 Conclusory allegations are insufficient to raise a cognizable claim of ineffective 3 assistance. Jones v. Gomez, 66 F.3d 199, 205 (9th Cir. 1995) (conclusory suggestions that

4 counsel provided ineffective assistance “fall far short of stating a valid claim of constitutional

5 violation”).

6 If the petitioner makes an insufficient showing as to either one of the two Strickland 7 components, the reviewing court need not address the other component. Strickland, 466 U.S.

8 at 697.

9 a. Deficient Performance 10 The petitioner must show that counsel’s performance was deficient, requiring a 11 showing that counsel made errors so serious that he or she was not functioning as the “counsel”

12 guaranteed by the Sixth Amendment. Strickland, 466 U.S. at 687. The petitioner must show

13 that “counsel’s representation fell below an objective standard of reasonableness,” and must

14 identify counsel’s alleged acts or omissions that were not the result of reasonable professional

15 judgment considering the circumstances. Richter, 562 U.S. at 104 (citing Strickland, 466 U.S.

16 at 688); United States v. Quintero-Barraza, 78 F.3d 1344, 1348 (9th Cir. 1995).

17 Petitioner must show that counsel’s errors were so egregious as to deprive him of a fair 18 trial, one whose result is reliable. Strickland, 466 U.S. at 688. Judicial scrutiny of counsel’s

19 performance is highly deferential, and the habeas court must guard against the temptation “to 20 second-guess counsel’s assistance after conviction or adverse sentence.” Id. at 689. Instead,

21 the habeas court must make every effort “to eliminate the distorting effects of hindsight, to

22 reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct

23 from counsel’s perspective at the time.” Id.; see also Richter, 562 U.S. at 107. 24 The Supreme Court has “declined to articulate specific guidelines for appropriate 25 attorney conduct and instead ha[s] emphasized that ‘[t]he proper measure of attorney

26 performance remains simply reasonableness under prevailing professional norms.’” Wiggins v. 27 Smith, 539 U.S. 510, 521 (2003) (quoting Strickland, 466 U.S. at 688).

28 18 1 However, “general principles have emerged regarding the duties of criminal defense 2 attorneys that inform [a court’s] view as to the ‘objective standard of reasonableness’ by which

3 [a court must] assess attorney performance, particularly with respect to the duty to investigate.”

4 Summerlin v. Schriro, 427 F.3d 623, 629 (9th Cir. 2005). “[S]trategic choices made after

5 thorough investigation of law and facts relevant to plausible options are virtually

6 unchallengeable.” Strickland, 466 U.S. at 690. Strickland permits counsel to “make a 7 reasonable decision that makes particular investigations unnecessary.” Richter, 562 U.S. at

8 106 (citing Strickland, 466 U.S. at 691).

9 However, strategic choices made after less than complete investigation are reasonable 10 precisely to the extent that reasonable professional judgments support the limitations on

11 investigation. In other words, counsel has a duty to make reasonable investigations or to make

12 a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness

13 case, a particular decision not to investigate must be directly assessed for reasonableness in all

14 the circumstances, applying a heavy measure of deference to counsel’s judgment. Wiggins,

15 539 U.S. at 521 (quoting Strickland, 466 U.S. at 690–91); see also Thomas v. Chappell, 678

16 F.3d 1086, 1104 (9th Cir. 2012) (counsel’s decision not to call a witness can only be

17 considered tactical if he had “sufficient information with which to make an informed

18 decision”); Jennings v. Woodford, 290 F.3d 1006, 1016 (9th Cir. 2002) (counsel’s choice of

19 alibi defense and rejection of mental health defense not reasonable strategy where counsel 20 failed to investigate possible mental defenses).

21 Counsel may formulate a strategy, reasonable at the time, and balance limited resources 22 consistent with effective trial tactics and strategies. See Richter, 562 U.S. at 107. Counsel is

23 not required to pursue an investigation that would be fruitless, or harmful to the defense. Id. at

24 108. A reviewing court “need not determine the actual explanation for counsel’s [strategic

25 choices], so long as his [choices fall] within the range of reasonable representation.” Morris v.

26 State of California, 966 F.2d 448, 456 (9th Cir. 1991). 27 A court indulges a “‘strong presumption’ that counsel’s representation was within the 28 19 1 ‘wide range’ of reasonable professional assistance.” Richter, 562 U.S. at 104 (quoting 2 Strickland, 466 U.S. at 687); Sanders v. Ratelle, 21 F.3d 1446, 1456 (9th Cir. 1994). This

3 presumption of reasonableness means that not only do we “give the attorneys the benefit of the

4 doubt,” we must also “affirmatively entertain the range of possible reasons counsel may have

5 had for proceeding as they did.” Pinholster, 563 U.S. at 196.

6 The basic requirements of Strickland apply with equal force in the penalty phase. 7 Petitioner must show that counsel’s actions fell below an objective standard of reasonableness,

8 and that the alleged errors resulted in prejudice. Strickland, 466 U.S. at 687-88.

9 b. Prejudice 10 The petitioner also must demonstrate prejudice, that is, he must show that “there is a 11 reasonable probability that, but for counsel’s unprofessional errors, the result . . . would have

12 been different.” Strickland, 466 U.S. at 694. “It is not enough ‘to show that the errors had

13 some conceivable effect on the outcome of the proceeding.’” Richter, 562 U.S. at 104 (quoting

14 Strickland, 466 U.S. at 693). “Counsel’s errors must be ‘so serious as to deprive the defendant

15 of a fair trial, a trial whose result is reliable.’” Id. (quoting Strickland, 466 U.S. at 687). Under

16 this standard, we ask “whether it is ‘reasonably likely’ the result would have been different.”

17 Richter, 562 U.S. at 111 (quoting Strickland, 466 U.S. at 696).

18 That is, only when “the likelihood of a different result [is] substantial, not just 19 conceivable,” has the petitioner met Strickland’s demand that defense errors were “so serious 20 as to deprive [him] of a fair trial.” Id. at 104 (quoting Strickland, 466 U.S. at 687). A court

21 need not determine whether counsel’s performance was deficient before examining the

22 prejudice suffered by the petitioner because of the alleged deficiencies. Strickland, 466 U.S. at

23 697. Since the petitioner must affirmatively prove prejudice, any deficiency that does not

24 result in prejudice must necessarily fail.

25 Petitioner must show “a reasonable probability that, but for counsel’s unprofessional 26 errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 693-94. 27 To assess that probability, the reviewing court must consider the totality of the available

28 20 1 mitigation evidence and reweigh it against the evidence in aggravation. Porter v. McCollum,

2 558 U.S. 30, 41 (2009) (citing Williams, 529 U.S. at 397-398). The court must consider

3 whether the likelihood of a different result is “sufficient to undermine confidence in the

4 outcome” actually reached at sentencing. Rompilla v. Beard, 545 U.S. 374, 393 (2005) 5 (quoting Strickland, 466 U.S. at 694).

6 Assessing prejudice at the penalty phase implicates a three-step inquiry: First, the court 7 evaluates and weighs the totality of the available mitigating evidence; second, it evaluates and

8 weighs the aggravating evidence and any rebuttal evidence that could have been adduced by

9 the government had the mitigating evidence been introduced; and third, it reweighs the

10 evidence in aggravation against the totality of available mitigating evidence to determine

11 whether there is a reasonable probability that, absent the errors, the sentencer would have

12 concluded that the balance of aggravating and mitigating circumstances did not warrant death.

13 Apelt v. Ryan, 878 F.3d 800, 832 (9th Cir. 2017); see also Andrews v. Davis, 866 F.3d 994,

14 1020 (9th Cir. 2017), reh’g en banc granted by 888 F.3d 1020 (9th Cir. 2018); Strickland, 466

15 U.S. at 695.

16 “The defendant bears the highly demanding and heavy burden of establishing actual 17 prejudice.” Livaditis v. Davis, No. 14-99011, 2019 WL 3756064, at 11 (9th Cir. Aug. 9, 2019)

18 (quoting Bible v. Ryan, 571 F.3d 860, 870 (9th Cir. 2009)).

19 Counsel has an “obligation to conduct a thorough investigation of the defendant’s 20 background,” Williams, 529 U.S. at 396, and a duty to investigate, develop, and present

21 mitigation evidence during penalty phase proceedings. Wiggins, 539 U.S. at 521-23. “At the

22 very least, counsel should obtain readily available documentary evidence such as school,

23 employment, and medical records, and obtain information about the defendant’s character and

24 background.” Robinson v. Schriro, 595 F.3d 1086, 1108-09 (9th Cir. 2010) (citing Boyde v.

25 California, 494 U.S. 370, 382 (1990)).

26 c. Application of Strickland under AEDPA 27 Under AEDPA, the court does not apply Strickland de novo. Rather, the court must 28 21 1 determine whether the state court’s application of Strickland was unreasonable. Richter, 562

2 U.S. at 99-100. Establishing that a state court’s application of Strickland was unreasonable

3 under 28 U.S.C. § 2254(d) is very difficult. Richter, 562 U.S. at 100. Since the standards

4 created by Strickland and § 2254(d) are both “highly deferential,” when the two are applied in

5 tandem, review is “doubly” so. Richter, 562 U.S. at 105 (quoting Knowles v. Mirzayance, 556

6 U.S. 111, 123 (2009)); see also Cheney v. Washington, 614 F.3d 987, 995 (9th Cir. 2010)

7 (quoting Yarborough v. Gentry, 540 U.S. 1, 5-6 (2003)). Further, because the Strickland rule is

8 a “general” one, courts have “more leeway . . . in reaching outcomes in case-by-case

9 determinations” and the “range of reasonable applications is substantial.” Richter, 562 U.S. at

10 101; see also Premo v. Moore, 562 U.S. 115, 127 (2011) (noting the leeway afforded state

11 courts under AEDPA in applying general standards).

12 Here again, Strickland dictates a “‘strong presumption’ that counsel’s representation 13 was within the ‘wide range’ of reasonable professional assistance.” Richter, 562 U.S. at 104

14 (quoting Strickland, 466 U.S. at 687). AEDPA, acting in tandem with Strickland asks whether

15 the state court’s application of Strickland was unreasonable. Richter, 562 U.S. at 99-100.

16 2. Claims III(C-E) 17 Petitioner alleges counsel Schultz was ineffective by failing to investigate, develop, and 18 present mitigating psychosocial evidence (i.e. claim III(C)) including opinion by social history

19 and mental health experts (i.e. claim III(D)), and lay witness testimony (i.e. claim III(E)), 20 violating his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments. (Doc. No. 51-

21 1, ¶¶ 433-568.)

22 a. Supplemental Legal Standards 23 The Eighth Amendment requires that the sentencer not be precluded from considering, 24 as a mitigating factor, any aspect of a defendant’s character or record and any of the

25 circumstances of the offense that the defendant proffers as a basis for a sentence less than

26 death. Eddings v. Oklahoma, 455 U.S. 104, 110 (1982) (trial court deficient by refusing to 27 consider mitigating evidence of defendant’s violent family history and mental/emotional

28 22 1 disturbance); Lockett v. Ohio, 438 U.S. 586, 604 (1978) (sentencer in a capital case shall not be

2 precluded from considering, as a mitigating factor, any aspect of a defendant's character or

3 record and any of the circumstances of the offense).

4 To determine whether the investigation was reasonable, the court “must conduct an 5 objective review of [counsel’s] performance, measured for reasonableness under prevailing

6 professional norms, which includes a context-dependent consideration of the challenged

7 conduct as seen from counsel’s perspective at the time.” Wiggins, 539 U.S. at 523; See also

8 Rompilla, 545 U.S. at 381; Strickland, 466 U.S. at 699 (counsel could “reasonably surmise . . .

9 that character and psychological evidence would be of little help”); Burger v. Kemp, 483 U.S.

10 776, 794 (1987) (limited investigation reasonable because all witnesses brought to counsel’s

11 attention provided predominantly harmful information).

12 b. State Court Direct and Collateral Review 13 Petitioner presented in the SSHCP claim III including all subclaims (Lod. Doc. No. 30, 14 SSHCP, at 200-302) which was summarily denied on the merits with certain subclaims

15 including subclaims C, D and E denied on procedural grounds (Lod. Doc. No. 31, Order

16 Denying Cal. Pet., In re Colin Raker Dickey, No. S165302 (May 29, 2012)).

17 Petitioner also claimed on direct appeal that trial counsel was ineffective by failing to 18 present any mitigating evidence. (Lod. Doc. No. 1, Appellant’s Opening Brief, hereinafter

19 “AOB”, at claim XXI.) The California Supreme Court denied the claim on the merits. Dickey, 20 35 Cal. 4th at 926-27.

21 c. Analysis 22 i. Deficient Performance 23 Petitioner argues that Schultz’s decision to forego presentation of then available 24 mitigating psychosocial evidence was not supported by a reasonable investigation and trial

25 tactics. (Doc. No. 51-1, ¶¶ 433-568; see also RT 5108-13; Lambright v. Schriro, 490 F.3d

26 1103, 1120 (9th Cir. 2007) (counsel has a duty to investigate all potentially mitigating 27 evidence); see also Penal Code § 190.3(k)); Lockett, 438 U.S. at 604 (“[I]n capital cases the

28 23 1 fundamental respect for humanity underlying the Eighth Amendment . . . requires

2 consideration of the character and record of the individual offender and the circumstances of

3 the particular offense as a constitutionally indispensable part of the process of inflicting the

4 penalty of death).

5 Particularly, he argues Schultz could not have made an informed tactical decision 6 without consideration of his habeas proffered evidence of: (i) pervasive physical and sexual

7 abuse, mental illness, neglect and poverty, (ii) organic brain and mental impairments, (iii)

8 substance abuse including drugs and alcohol, and (iv) and his positive attributes. (Doc. No.

9 142 at 63-140 (citing Daniels v. Woodford, 428 F.3d 1181, 1206 (9th Cir. 2005)) (counsel

10 ineffective for failure to investigate and present mitigating evidence of mental disorder); see

11 also Penal Code section 190.3(d, h, k); Doc. No. 144 at 19 n.3, 22-23.)

12 The record reflects Schultz did not present any mitigating evidence at the penalty trial, 13 opting instead to briefly argue his penalty defense theory to the jury. (CT 478-480.) Schultz’s

14 primary penalty defense relied upon lingering doubt raised by guilt phase evidence of

15 circumstances surrounding Petitioner’s participation in the crimes as a mere aider and abettor

16 of felony murder. (Pet. Ex. 12 ¶ 5.) Schultz argued this primary defense to the jury at penalty

17 closing. (RT 5139-40.)

18 The California Supreme Court denied claimed ineffectiveness arising from counsel’s 19 failure to present any mitigating evidence at the penalty trial, stating that: 20 Defendant contends he received ineffective assistance of counsel because 21 counsel presented no mitigating evidence in the penalty phase. 22 “On a silent record ... we will not assume that the defense counsel's failure to present mitigating evidence rendered his assistance ineffective. Any assertion 23 that counsel was inadequate in this regard must be raised on habeas corpus.” (People v. Diaz (1992) 3 Cal. 4th 495, 566, 11 Cal.Rptr.2d 353, 834 P.2d 1171 24 (Diaz ); see People v. Anderson (2001) 25 Cal. 4th 543, 598, 106 Cal.Rptr.2d 575, 22 P.3d 347.) 25 The record is not silent here. However, insofar as it speaks, it undercuts 26 defendant's ineffectiveness claim. 27 Defendant contends his mother should have been called to testify as to the “awful conditions of [his] upbringing.” A declaration by defendant's mother was 28 24 attached to the motion for a new trial filed by defendant's new counsel 1 appointed for the purpose of preparing the motion. In the declaration, defendant's mother states she had been available to testify that when defendant 2 was growing up he “suffered abusive beatings” by his father, and that at times she had taken out her “rage” on defendant, beating him with a belt. 3 Prior to the penalty phase, defense counsel discussed with the court his concern 4 that such “abuse” could be viewed as harsh punishment, raising the question, on rebuttal, whether defendant had done something to provoke such punishment. 5 This was a concern because defendant had, indeed, done something deserving of severe punishment—he had sexually molested his little sister. The abuse 6 occurred over a period of two years, starting when defendant was 12 and his sister was only 5.16 Noting such rebuttal would be “devastating,” defense 7 counsel said he would have to decide whether the risk was too great. In the end, defense counsel called neither defendant's mother nor any other witness. 8

9 ----------------------------------------FOOTNOTE--------------------- 10 n.16 In her declaration filed in support of defendant's new trial motion, defendant's mother acknowledged defendant was “accused” of molesting his 11 sister, but stated she “had no personal knowledge” of it. However, the probation report reveals defendant was adjudged guilty of the conduct by a juvenile court. 12 ------------------------------------END FOOTNOTE------------------ 13

14 When defense counsel's reasons are not readily apparent from the record, we 15 will not assume he was ineffective unless his challenged conduct could have had “ ‘ “no conceivable tactical purpose.” ’ ” (Earp, supra, 20 Cal. 4th at p. 896, 16 85 Cal.Rptr.2d 857, 978 P.2d 15; People v. Hines (1997) 15 Cal. 4th 997, 1065, 64 Cal.Rptr.2d 594, 938 P.2d 388; Diaz, supra, 3 Cal. 4th at p. 558, 11 17 Cal.Rptr.2d 353, 834 P.2d 1171.) 18 Here, defense counsel's tactical purpose is readily apparent from the record. Indeed, in arguing the motion for a new trial, defendant's substitute counsel 19 expressly acknowledged defense counsel made a “strategic and tactical decision” in not calling defendant's mother. Accordingly, we reject this 20 assignment of ineffectiveness of counsel. 21

22 Dickey, 35 Cal. 4th at 926–27.

23 The California Supreme Court reasonably rejected these claims, for the reasons stated 24 by that court and those that follow.

25 (1) Reasonable Defense Investigation Supported Trial Tactics 26 Aggravating Value of Petitioner’s Criminal History 27 Prior to the start of the penalty trial, the prosecutor stated the aggravating evidence 28 25 1 would consist of autopsy photos of the victims (as circumstances of the crime); and Petitioner’s

2 prior conviction in Nevada for second degree burglary without going into details of that

3 conviction. (RT 5081-83, 5085.)

4 Schultz had a longstanding concern that presentation of mitigating evidence might open 5 the door to prosecution rebuttal with aggravating evidence of Petitioner’s prior criminal

6 conduct, i.e. molestation of his sister and the Nevada burglary which involved sexual assault of

7 the corpse of a seven-year-old girl. (Pet. Ex. 12 ¶ 13.) As early as August 1989, Schultz and

8 Petitioner discussed the possibility the Nevada burglary might be used against Petitioner at

9 sentencing. (Pet. Ex. 23 at SH002090.)

10 Prior to the penalty trial, Schultz, the prosecutor and the trial judge discussed in limine 11 whether and the extent to which presentation of mitigating character evidence might open the

12 door details of Petitioner’s criminal history. (RT 5080-82, 5108-13.) Schultz discussed his

13 concern that details of Petitioner’s prior criminal acts might come before the jury, particularly

14 if Petitioner’s mother were to testify at the penalty trial. (RT 5108-09.)

15 The trial court and prosecutor suggested that evidence of the prior criminal conduct 16 could not come in as long as Schultz avoided eliciting from Petitioner’s mother, Ms. Walters,

17 character or opinion testimony about Petitioner. (See RT 5108-12.; Doc. No. 51-1, ¶ 556-57;

18 see also People v. Ramirez, 50 Cal. 3d 1158, 1191-1193 (1990) (absent defense presentation of

19 good character evidence the prosecution may not introduce evidence of prior misconduct). In 20 the course thereof, the prosecutor conceded the risk that a trial witness might stray during

21 testimony even if instructed not to do so, and that “I’m not gonna say that I’m not going to try

22 to get that sexual escapade in front of the jury, if I feel it’s proper, and if I feel I’m entitled to

23 do it under the laws of evidence.” (RT 5112.)

24 Schultz took the matter under consideration, stating that “I have to review the available 25 information and decide whether – discuss the problem with my witness and decide whether or

26 not the risk is too great.” (Id.) 27 The trial court informed Schultz that: 28 26 1 [I]f you want, and if you determine asking certain questions, I’m happy to listen 2 to what you have to say further and then give you an option as to whether or not I’m inclined to let – Mr. Hahus ask questions concerning this particular incident 3 or not. 4 (Doc. No. 51-1, n.39, citing RT at 5113.)

5 Schultz replied: 6 I understand what the Court’s position is, I just have to make a – make a 7 determination based after – just on a conversation with the witness and with the – the information available and see if I can – if I can structure it narrow enough 8 to avoid the pitfalls. 9

10 (RT 5113.)

11 Petitioner argues Schultz unreasonably failed to accept the trial court’s offer to more 12 specifically “investigat[e] the matter with the court[.]” (Doc. No. 51-1 ¶ 558, citing RT 5112-

13 13; see also Doc. No. 142 at 132-34, citing RT 5108-13.) He argues Schultz was not tactically

14 motivated in this regard, but rather operated under a:

15 [T]otally stigmatized misunderstanding and profoundly debilitating lack of 16 knowledge and denial of the myriad ways in which Colin’s chronic, torturous, sadistic and perverse childhood victimization not only contributed to the 17 multiple undiagnosed mental illnesses and serious organic brain damage that deformed his character, but defined his abnormal and perverse sexual behavior. 18 With no understanding of the sexual torment within which Colin was embedded as a child and adolescent, his trial counsel “rested” rather than allow any 19 “character” evidence at all to be presented. 20

21 (Pet. Ex. 2, at 6.)]]

22 However, the record reasonably suggests Schultz attempted to structure the mitigation 23 defense to “avoid the pitfalls,” upon consideration of the guidance provided by the trial court

24 and the prosecutor during the in limine hearing. (RT 5113; see Siripongs v. Calderon, 133

25 F.3d 732, 736 (9th Cir. 1998) (the relevant inquiry is not what counsel could have pursued, but

26 whether the choices counsel made were reasonable). 27 For example, Schultz was aware the prosecutor had indicated he would not impeach 28 27 1 Petitioner’s mother with negative evidence of Petitioner’s character if her testimony avoided

2 evidence of his good character. (See Doc. No. 51-1, ¶ 461; RT 5111-13; see also Pet. Ex. 15 ¶

3 5.) Still nothing therein allayed Schultz’s concern the mother might be “baited” into character

4 testimony on cross-examination, as discussed below. (Pet. Ex. 12 ¶ 13.) Schultz recounted his

5 thought process and rationale in his habeas declaration, as follows:

6 Prior to the penalty phase, at an in limine hearing with the judge and prosecutor, 7 we discussed the admissibility of character evidence regarding the defendant, including evidence of sexual molestations by the defendant of his sister in his 8 early adolescence and an act of necrophilia at age 17 that resulted in his felony prior in adult court for second degree burglary in Nevada. The court confirmed 9 that this character evidence could not be broached in the penalty phase as long as the defense did not place the defendant’s character in issue in its case in 10 chief. As a result of this ruling, I decided not to use a mental health defense in the mitigation case. I knew that the prosecution case for aggravation would 11 consist only of the defendant’s felony prior, and photographs of the victims. I did not feel that this evidence would weigh heavily in aggravation. I planned to 12 argue that the defendant was not a participant in the actual killings, and therefore that the photographs did not depict circumstances attributable to his 13 role in the underlying felonies. I felt that evidence of the defendant’s difficult childhood and abusive treatment by his parents could be effectively presented 14 through the repentant testimony of his mother, and that she could be coached to avoid raising the issue of her son’s character. 15

16 As a result, approximately two weeks before the penalty phase, I contacted the defendant’s mother, Linda Walters, at her home in Washington and arranged to 17 have her attend the penalty phase and to testify. We had approximately four telephone conversations, lasting a total of two hours, before she arrived in 18 Fresno the afternoon before her scheduled testimony. I met with Ms. Walters twice for approximately two hours total to prepare her for her testimony. In my 19 conversations with her, Ms. Walters appears to have a good grasp of the relevant family history. She appeared ready, willing and able to testify to her 20 culpable role in her son’s abusive upbringing. But, she indicated to me that whether she was asked or not asked whether or not her son was a good boy, she 21 would have to respond that he was or volunteer the information given the opportunity. This scared me because, while I felt that I could pose the questions 22 to her in a narrow enough fashion to avoid her reference to character evidence, I felt that the prosecutor could easily bait her into making a positive character 23 statement about her son, and that he then could introduce evidence of the defendant’s past misdeeds. I determined that the risk of Ms. Walters testifying 24 was too great in comparison to the potential benefit. I told her this at our second meeting at breakfast on the morning scheduled for her testimony. She did not 25 attend the penalty phase proceedings and left Fresno later that day without seeing or speaking to [Petitioner]. No evidence was presented by the defense at 26 the penalty phase. 27 (Pet. Ex. 12 ¶ 13.)

28 28 1 Defense Social History Investigation 2 Petitioner argues the defense social history investigation was inadequate because it was 3 started late; denied Petitioner the opportunity to assist in the defense; did not involve experts;

4 and was incomplete. (Doc. No. 51-1, ¶¶ 441, 459, 471-472, 534.)

5 “The failure to timely prepare a penalty-phase mitigation case is . . . error.” Kayer v. 6 Ryan, 923 F.3d 692, 714 (9 th Cir. 2019) (citing Allen v. Woodford, 395 F.3d 979, 1001 (9th

7 Cir. 2005)). The Kayer court held that the failure of trial counsel to begin the penalty phase

8 investigation promptly upon appointment, instead delaying until after the guilty verdict, fell

9 below an objective standard of reasonableness. 923 F.3d at 715 (citing Strickland, 466 U.S. at

10 688).

11 “[T]he scope of a counsel’s pretrial investigation necessarily follows from the decision 12 as to what the theory of defense will be.” Soffar v. Dretke, 368 F.3d 441, 473 (5th Cir. 2004).

13 In determining whether counsel made reasonable tactical decisions about certain evidence, a

14 court focuses on whether the investigation supporting counsel’s decision to introduce or omit

15 certain evidence was itself reasonable. Wiggins, 539 U.S. at 523. Limited investigation may

16 be reasonable when it demonstrates that presenting certain evidence “would have been

17 counterproductive, or that further investigation would have been fruitless.” Id. at 525.

18 The record reflects that the defense investigation of guilt and penalty issues began well 19 before Petitioner’s April 1990 arraignment. (CT 232.) As early as April 1989, the defense 20 team including Schultz began a series of interviews with Petitioner. (See Pet. Ex. 23 at

21 SH002038-2137.) Petitioner appears to concede as much. (See Doc. No. 51-1 ¶ 441.) Schultz

22 and defense team garnered information including the identities and whereabouts of Petitioner’s

23 family members. (Pet. Ex. 23 at SH002038-2137; see also Pet. Ex. 2 at 106-09.) Petitioner

24 told the team of beatings and abuse he received at home and of his juvenile molestation

25 adjudication involving his sister, albeit he denied molesting her. (Id.) He told the defense

26 team about his father’s criminal activity; his drug use; living with various relatives and 27 sometimes running away; traveling to Reno, Nevada, and enrolling in and then dropping out of

28 29 1 Reno High School.

2 Petitioner also provided information relating to his own criminal history including that: 3 he participated as a teenager in various burglaries (Pet. Ex. 23 at SH002076-77) and was

4 arrested in Nevada and convicted as an adult of second-degree felony burglary relating to an

5 act of necrophilia. (Id., at SH002090). Notably, during an August 1989 interview, Schultz

6 specifically discussed in some detail the potential use of the Nevada conviction against

7 Petitioner at the penalty phase; that Schultz had seen newspaper articles regarding that crime

8 and that Schultz did not want to delay assembling information on Petitioner’s criminal record.

9 (Pet. Ex. 23 at SH002091-94.)

10 At that early stage, Petitioner himself expressed concern the Nevada conviction might 11 come in and bias the jury. Petitioner suggested a possible motion to change venue. (Id.)

12 Schultz confirmed his trial strategy of keeping the Nevada conviction from the jury. (Id.)

13 Noting Petitioner’s hesitance to talk about the burglary and related necrophilia, Schultz

14 specifically explained to him why the defense team need detailed information on such matters.

15 (See Pet. Ex. 2 at 109.) Petitioner went on to provide certain details of his sentence and his

16 time in a Nevada prison. (Id.)

17 Significantly, defense investigator King interviewed Petitioner’s mother, Linda Dickey, 18 and four months prior to trial prepared Schultz with an August 1990 written social history that

19 included the following information: 20 Petitioner was healthy growing up, with no unusual diseases or medical 21 problems; he was sometimes hyperactive and developed a nervous twitch around age 9 or 10 years; 22 Petitioner’s family life included physical abuse, particularly, the father beat 23 Petitioner severely, but also included family vacations to places such as Disneyland and the San Diego Zoo; 24 Petitioner’s parents drank and used drugs, passed bad checks, were sometimes 25 without housing arrangements, living with relatives or others, the father had difficulty holding a job due to his drinking, at times the father was in jail or 26 otherwise absent from the home, and the family lived on welfare; 27 Petitioner and his siblings witnessed and were victims of violence in the home; 28 30 The mother started working in fast food, became heavily addicted to drugs, 1 engaged in sexual liaisons and severe beatings of the children including Petitioner; 2 The father, Donald Dickey, engaged in sexual misconduct with relatives 3 including the repeated rape of mother’s 13-year-old sister while the children including Petitioner watched; 4 Petitioner sometimes acted strangely, abusing his younger bother; 5 Petitioner sexually molested his younger sister for a period of years; 6 In 1979, Petitioner’s mother divorced his father noting repeated criminal 7 conduct, beatings and the father’s abuse of the children and sexual molestation of her daughter, whereupon they lost their home to foreclosure, Petitioner 8 remained with his father; 9 The mother had little contact with Petitioner after he turned 14 years old noting that she feared him and her husband but did visit Petitioner while he was in 10 prison in Nevada on the burglary charge stemming from the necrophilia event (id.); 11 The father became a fugitive following the molestation conviction in 1979 and 12 his whereabout since then are unknown. 13

14 (Pet. Ex. 23 at SH002040-49; see also Pet. Ex. 2 at 110-20; Pet. Ex. 15 ¶¶ 2, 5.)

15 Schultz, contemplating possible presentation of social history evidence in mitigation, 16 personally contacted Ms. Walters about two week before the penalty phase and engaged in

17 multiple phone conversations over the course of approximately four hours relating to her

18 appearance and testimony. (Pet. Ex. 12 at ¶¶ 13; Pet. Ex. 15 ¶¶ 2-5; see also Doc. No. 142 at

19 65-66.) He also provided in-person witness preparation of about the same length. (Id.) 20 Defense Mental State Investigation 21 Petitioner argues the mental state investigation was inadequate because it was started 22 late; denied Petitioner the opportunity to assist in the defense; did not involve experts; and was

23 incomplete. (Doc. No. 51-1, ¶¶ 441, 459, 471-472, 534.) However, the record reflects the

24 defense team counsel consulted with two mental health experts in preparation for the guilt

25 phase. Neither expert opined in favor of a mental state defense.

26 Defense psychiatrist Dr. John Hackett, who interviewed Petitioner in jail during August 27 1989, found him oriented and of average intelligence. (Pet. Ex. 23 at SH04457.) Dr. Hackett

28 31 1 found Petitioner unlikely to be honest, with an “angry…self-defeating personality style [that]

2 will get in the way” of the defense. (Pet. Ex. 2 at 112; see also Pet. Ex. 23 at SH04452-56.)

3 Dr. Hackett stated his belief that although Petitioner was possibly suicidal, he was not

4 incompetent. (Pet. Ex. 23 at SH04453, 4457; see also Pet. Ex. 2 at 21.)

5 Dr. Hackett also extensively reviewed records supplied by the defense team including 6 of Petitioner’s necrophilia which presumptively included probation reports of his dysfunctional

7 family background, aberrant upbringing and sexual molestation of his sister. (Id.) Dr. Hackett

8 described Petitioner’s perverse sexual excitement over the young girl’s corpse, necrophilia, and

9 ultimate depositing of the corpse in a dumpster. (Id.) Dr. Hackett suggested Petitioner had an

10 aberrant and traumatic upbringing that could be developed in mitigation. (Id., at 113.) Dr.

11 Hackett diagnosed Petitioner with severe antisocial personality disorder and atypical

12 psychosexual disorder. (Id.)

13 Psychologist Dr. Larry “Buzz” Thompson examined Petitioner in jail and provided a 14 July 1990 report finding that Petitioner was anxious, mildly depressed and cynical (Pet. Ex. 2

15 at 114-15; Pet. Ex. 23 at SH002287-90), with no obvious symptoms of psychosis (id.). Dr.

16 Thompson noted Petitioner’s drug use and criminal past. (Id.) Dr. Thompson opined that “in

17 the absence of any evidence of psychotic thought process coupled with [Petitioner’s] firmly

18 stated intention not to plea bargain, I believe a psychiatric defense would be of no value.” (Id.)

19 Dr. Thompson found Petitioner to be “fairly sophisticated at anticipating the questions 20 that would be asked of him in an interview setting and his answers [to be] reasonable and well

21 structured, if very pat.” (Id. at 3.)

22 Dr. Thompson averred that “[w]hile [Petitioner] may qualify for a diagnosis in the area 23 of character (personality) disorder . . . I can see no point in pursuing one for the purpose of his

24 legal defense.” (Id., at 4; see also Pet. Ex. 2 at 115.) Dr. Thompson suggest that Petitioner

25 “should be used as a witness in his own behalf.” (Pet. Ex. 19 attachment “A” at 3.)

26 This Court observed the findings of these defense experts in its prior order denying 27 guilt phase claims, as follows:

28 32 1 Schultz engaged in the noted pre-trial preparations including consultation with 2 two mental health experts – psychiatrist Dr. John Hackett who concluded petitioner was possibly suicidal, and psychologist Larry Thompson who 3 concluded petitioner mildly depressed. (Doc. No. 51-1 ¶ 523; see also SSHCP, Ex. 19 ¶ 9.) Schultz could reasonably have relied upon these experts in making 4 strategic decisions not to assert mental defenses at the guilty phase or conduct further related investigation. (See e.g., claims II(B), II(C).) 5 Additionally, Schultz and his team discussed petitioner’s background with 6 petitioner’s mother. The state supreme court could reasonably have found that Schultz had concerns relating to potentially unfavorable behavioral, character 7 and bad acts evidence and that such were an objectively reasonable basis not to further pursue such matters during the guilt phase. (SHCP, Ex. B ¶ 13.) 8

9 (Doc. No. 135 at 32.)

10 Petitioner concedes that Schultz’s pre-trial preparations included noted 11 consultation with two mental health experts – psychiatrist Dr. John Hackett who found petitioner possibly suicidal (Doc. No. 51-1 ¶ 523), and psychologist Larry 12 Thompson (id.; SSHCP, Ex. 19) who found petitioner mildly depressed. The state supreme court could reasonably have found Schultz’s decision not to 13 pursue guilty phase mental state defenses was objectively reasonable. 14

15 (Doc. No. 135 at 39-40.)

16 Petitioner was interviewed in jail by Dr. Hackett, ((Doc. No. 51-1 ¶ 523; 17 SSHCP, Ex. 2 at 119-120), who diagnosed him with antisocial personality disorder but nonetheless found him competent to assist in his defense (id.). 18 Petitioner also was evaluated by Dr. Thompson (id. at 114), who found Petitioner mildly depressed (SSHCP, Ex. 2 at 121-23; id. at Ex. 19) but showing 19 no obvious symptoms of psychosis either manifest or latent. (SSHCP, Ex. 2 at 122). Dr. Thompson opined that a psychiatric defense would be of no value 20 (id.). 21 (Doc. No. 135 at 45.)

22 Additionally, Petitioner’s argument he was denied the ability to assist in his defense 23 fails for the reasons stated in the discussion of claims II(I), III(B), V, VI, and VII, post.

24 Decision to Forego Further Social History Investigation was Reasonable 25 The state supreme court reasonably could find Petitioner’s habeas proffered social 26 history evidence was not a basis for further penalty defense investigation. (Doc. No. 51-1, ¶ 27 563; see Doc. No. 142 at 139.)

28 33 1 Petitioner points to habeas proffered evidence from family members and acquaintances 2 of familial: mental illness (Pet. Ex. 1 ¶ 11; Pet. Ex. 3 ¶¶ 19, 20, 21); physical and sexual abuse

3 (Pet. Ex. 1 ¶¶ 4-10, 12-13, 18, 21; Pet., Ex. 3 ¶ 12; Pet. Ex. 4 ¶¶ 5, 8, 9, 17, 19, 29; Pet. Ex. 5

4 ¶¶ 5, 6, 10; Pet. Ex. 6 ¶¶ 4, 5; Pet. Ex. 7 ¶¶ 5, 7, 9; Pet. Ex. 8 ¶¶ 4, 6, 7, 8, 10, 11, 13, 15; Pet.

5 Ex. 15 ¶ 7; Pet. Ex. 17 ¶ 4; Pet. Ex. 18 ¶ 4; Pet. Ex. 20 ¶¶ 5-6; Pet. Ex. 21 ¶ 9); violent and

6 immoral activity (Pet. Ex. 1 ¶¶ 16, 19; Pet. Ex. 3 ¶ 5; Pet. Ex. 7 ¶¶ 14, 18, 19; Pet. Ex. 8 ¶ 16;

7 Pet. Ex. 15 ¶ 7; Pet. Ex. 21 ¶¶ 2, 3, 7); deprivation, neglect and poverty (Pet. Ex. 4 ¶¶ 12, 14,

8 15, 16; Pet. Ex. 5 ¶¶ 4, 14, 15; Pet. Ex. 6 ¶ 7; Pet. Ex. 8 ¶ 5; Pet. Ex. 16 ¶ 2; Pet. Ex. 17 ¶ 9);

9 and alcohol and substance abuse (Pet. Ex. 1 ¶¶ 15, 17, 20; Pet. Ex. 3 ¶¶ 2-3, 5, 13, 14, 18; Pet.

10 Ex. 4 ¶¶ 18, 28, 30; Pet. Ex. 5 ¶¶ 11, 16; Pet. Ex. 6 ¶ 8; Pet. Ex. 7 ¶¶ 6, 8; Pet. Ex. 8 ¶¶ 5, 9, 17;

11 Pet. Ex. 17 ¶ 4; Pet. Ex. 21 ¶ 8).

12 Petitioner argues further investigation and development of Petitioner’s social history as 13 such is reflected in his habeas proffer would have been mitigating and fostered residual doubt,

14 humanizing him and explaining his adverse life history, particularly his habitual drug use and

15 addiction. He argues this evidence would have overcome the aggravating value of his prior

16 criminal conduct by explaining how and why he came to commit such acts.

17 However, for the reasons discussed in the prejudice analysis below (see section VII, A, 18 2, c, ii, post), summarized here, Petitioner’s psychosocial history proffer is significantly

19 cumulative of the above noted defense investigation and information known to Schultz and 20 considered by him. The state supreme court reasonably could find such evidence essentially

21 cumulative of noted information discovered during the defense investigation including as

22 summarized by investigator King’s memorandum to Schultz and presumably considered by

23 Schultz. (See Pet. Ex. 23 at SH002040-49; see also Pet. Ex. 12 ¶ 13; Pet. Ex. 15 ¶¶ 2-5.)

24 The state supreme court reasonably could find Schultz was aware of Petitioner’s 25 difficult and dysfunctional upbringing and that Schultz was not unreasonable in determining

26 the mitigating value thereof did not outweigh the aggravating value of Petitioner’s prior 27 criminal acts. Particularly, the lay testimony proffer on habeas of family members who

28 34 1 thought well of Petitioner reasonably could present the same risk of rebuttal with evidence of

2 Petitioner’s prior criminal acts as the proposed testimony of his mother. (RT 5545.)

3 Schultz reasonably could have determined further investigation unwarranted as 4 presentation of such mitigating evidence risked opening the door to rebuttal evidence of his

5 prior criminal acts, for the reasons discussed above. See Frye v. Warden, San Quentin State

6 Prison, No. 2:99-CV-0628 KJM CKD, 2015 WL 300755, at *18 (E.D. Cal. Jan. 22, 2015) (“A

7 lawyer may make reasonable decisions that render particular investigations unnecessary.”).

8 For example, Schultz reasonably could have discounted the mitigating weight of mental state

9 evidence given the paucity of evidence in the record that Petitioner was suffering from mental

10 impairment or substance abuse at the time of the capital crimes.

11 Petitioner’s further argument regarding uninvestigated evidence relating to Petitioner’s 12 efforts at education, self-reform and religious conversion while in jail awaiting trial (Doc. No.

13 51-1, ¶ 530; Doc. No. 142 at 93) is not persuasive otherwise. The state supreme court

14 reasonably could find such uninvestigated social history evidence was largely cumulative of

15 information known to the defense (see Pet. Ex. 23 at SH002038-2137) and presented the same

16 risk of rebuttal with criminal history evidence.

17 Decision to Forego Further Mental History Investigation was Reasonable 18 The state supreme court reasonably could find Petitioner’s habeas proffered mental 19 state evidence was not a basis for further penalty defense investigation. (Doc. No. 51-1, ¶¶ 20 435-442, 472-473, 532-568.)

21 Petitioner faults Schultz for failure to retain and utilize mental health experts in the 22 penalty defense including to “deconstruct” his prior criminal conduct. (Doc. No. 51-1 ¶¶ 473,

23 532-552.) Particularly, he argues his conduct with the corpse of a young girl was a single

24 impulsive act, not qualifying as necrophilia, and that an expert at the penalty phase could have

25 made that clear. (Pet. Ex. 2 at 224-26.) He argues such mental state evidence would have been

26 mitigating and fostered residual doubt: humanized him, explaining his adverse life history, 27 particularly his habitual drug use and addiction. He argues this evidence would have overcome

28 35 1 the aggravating value of Petitioner’s noted prior criminal conduct by explaining how and why

2 he came to commit such crimes.

3 Petitioner points to habeas proffered expert opinion explaining the “childhood traumas 4 Petitioner’s parents inflicted upon him; the horrifying conditions Petitioner was subjected to

5 growing up; his parents’ moral bankruptcy and the associated mental, emotional, and moral

6 damage it inflicted upon Petitioner; and the concomitant psychological injuries he sustained.”

7 (Doc. No. 142 at 15; see also RT 5454-85.)

8 As above, Petitioner suggests that Schultz’s allegedly deficient conduct was not 9 tactically motivated, but rather that he operated under a:

10 [T]otally stigmatized misunderstanding and profoundly debilitating lack of 11 knowledge and denial of the myriad ways in which [Petitioner’s] chronic, torturous, sadistic and perverse childhood victimization not only contributed to 12 the multiple undiagnosed mental illnesses and serious organic brain damage that deformed his character, but defined his abnormal and perverse sexual behavior. 13 With no understanding of the sexual torment within which Colin was embedded as a child and adolescent, his trial counsel “rested” rather than allow any 14 “character” evidence at all to be presented. 15

16 (Id., citing Ex. 2, at 13; see also Doc. No. 142 at 123-24.)

17 However, as discussed in more detail in the section on prejudice below, (see section 18 VII, A, 2, c, ii, post), the state supreme court reasonably could find further mental state

19 investigation unwarranted. See Frye, 2015 WL 300755, at *18 (“A lawyer may make 20 reasonable decisions that render particular investigations unnecessary.”). That court would not

21 have been unreasonable in finding the noted conclusions of Drs. Hackett and Thompson

22 reasonably informed Schulz as to Petitioner’s then mental state such that further development

23 and pursuit of a mental health mitigation defense was unwarranted. (Doc. No. 135 at 32, 40,

24 45-48 ; see also Pet. Ex. 12 ¶ 13.)

25 Petitioner discounts the penalty phase value of Drs. Hackett and Thompson. He argues 26 these mental health experts were not retained to assist with mitigation or provide opinions in 27 mitigation. (Doc. No. 51-1 ¶ 541; see also Ex. 19 ¶¶ 3-5.) He argues they were not provided

28 36 1 with and did not consider Petitioner’s psychosocial history. (Id.)

2 Petitioner points to the habeas declaration Dr. Thompson that Schultz failed to provide 3 evaluation parameters and that investigators King and Temple failed to respond to his requests

4 for additional social and mental health history. (Doc. No. 51-1 ¶ 537; Pet. Ex. 19 ¶¶ 3-5; see

5 also Doc. No. 142 at 122); Caro v. Woodford, 280 F.3d 1247, 1254-55 (9th Cir. 2002) (duty to

6 provide penalty phase experts with pertinent information); Hendricks v. Calderon, 70 F.3d

7 1032, 1043 (9th Cir. 1995) (1981 trial) (“where counsel is on notice that his client may be

8 mentally impaired, counsel’s failure to investigate his client’s mental condition as a mitigating

9 factor in a penalty phase hearing, without a supporting strategic reason, constitutes deficient

10 performance.”). In this regard, Dr. Thompson avers this led him to give no thought to

11 specifically assessing mitigation or any mitigation factors. (Pet. Ex. 19 ¶ 5.)

12 Even so, Dr. Thompson does not state his review of the habeas proffer evidence caused 13 him to change the findings and opinions he reached at trial. (See Pet. Ex. 19 and attachment

14 “A” thereto.) Dr. Thompson stated that while he was not provided with any psychological or

15 physiological data pertaining to Petitioner, he did review “copious police reports” provided to

16 him by defense investigator King and considered limited life history information provided by

17 Petitioner including as to childhood and developmental issues. (Pet. Ex. 19 attachment “A” at

18 1.)

19 Notably, Petitioner’s habeas proffer does not show he was examined by a mental health 20 professional in relation to the molestation of his sister which occurred when Petitioner was 14

21 years old. (Pet. Ex. 23 at SH0000177.) To the extent Petitioner was examined in 1981 by Dr.

22 William Terry, a psychiatrist appointed by the state court during proceedings in Nevada on the

23 burglary charge involving necrophilia (Pet. Ex. 2 at 87-89), Dr. Terry found that Petitioner’s

24 previous history was “compatible with a diagnosis of attention deficit disorder with

25 hyperactivity and a continual depressive state which is often found in adolescents who

26 previously have met the criteria for being hyperactive[.]” (Pet. Ex. 2 at 89; Pet. Ex. 23 27 SH002284.) Dr. Hackett presumably reviewed Dr. Terry’s conclusions as part of his noted

28 37 1 examination of Petitioner. (See e.g., Pet. Ex. 23 at SH04453, 4457; see also Pet. Ex. 2 at 21.)

2 Furthermore, Petitioner apparently did not have mental health problems or receive 3 medication for such while imprisoned in Nevada. (Pet Ex. 23 at SH002105.) Upon his release

4 from prison, Petition held down two jobs at once, reasonably suggesting a level of functionality

5 consistent with the findings of the defense trial experts. (Id.)

6 Given the findings of the defense trial experts and the other information known to him 7 from the defense investigation, Schultz reasonably could have decided pursuit of mitigating

8 mental state defenses using these or other trial experts lacked tactical value. Especially so

9 given the risk that presentation of such mitigating evidence could open the door to rebuttal

10 evidence of his prior criminal acts.

11 Petitioner heavily relies upon his habeas experts Drs. Khazanov and Counter. But their 12 evaluations and opinions of organic and mental deficiencies rendered more than a decade after

13 trial can be discounted on that basis. See Boyde v. Brown, 404 F.3d 1159, 1168-69 (9th Cir.

14 2005), amended by 421 F.3d 1154 (9th Cir. 2005) (holding that if new mental health evidence,

15 obtained after the trial, were sufficient to establish a petitioner’s innocence, the petitioner could

16 “always provide a showing of factual innocence by hiring psychiatric experts who would reach

17 a favorable conclusion.”). Especially so, as Petitioner’s mother stated on habeas that she was

18 prepared to testify at the penalty phase that he “had no physical problems at birth . . . was a

19 healthy child while growing up and did not suffer any unusual diseases or medical problems.” 20 (Pet. Ex. 15 ¶ 7.)

21 Petitioner’s habeas proffer is only minimally probative of mitigating factors that he 22 may have acted under extreme mental or emotional disturbance, or was impaired by mental

23 disease or defect, for the reasons stated. The jury was instructed in these regards and

24 considered the prosecutor’s argument at closing which noted the absence of such evidence.

25 (Doc. No. 51-1, n.37, n.38, citing RT 5135-36.)

26 Additionally, this Court in its prior order denying guilt claims observed that Petitioner 27 was evaluated by a mental health professional in conjunction with his motion for new trial.

28 38 1 Counsel on that motion, Ms. Hart, retained psychiatrist Dr. Callahan to examine Petitioner with

2 a view toward evidence that might have been presented in mitigation at the penalty phase in

3 support of catchall sentencing factor “k” (regarding any extenuating and sympathetic

4 circumstances of defendant’s character or record). (RT 5463.)

5 Dr. Callahan found mitigating evidence in the form of Petitioner’s chaotic upbringing 6 by unstable, abusive parents who engaged in degenerate and criminal behavior. While Dr.

7 Callahan suggested Petitioner’s act of necrophilia demonstrated his “significant

8 psychopathology” (RT 5481), Dr. Callahan found no evidence Petitioner suffered from a

9 thought disorder or mental disease of defect. Dr. Callahan also found Petitioner not to show

10 remorse for the capital crime.

11 Mere Criticism of Trial Tactics 12 Petitioner argues in the alternative that psychosocial evidence could have been 13 presented without implicating Petitioner’s character and without opening the door to his prior

14 criminal acts. (Doc. No. 51-1 ¶¶ 467, 556-557, citing Ramirez, 50 Cal. 3d at 1191-93); see

15 also RT 5112-13.) However, as noted, his primary penalty defense was lingering doubt based

16 on guilt phase evidence that he did not aid and abet the capital crime; a defense Schultz could

17 have viewed as inconsistent with a mitigation defense based upon psychosocial evidence

18 explaining his participation in the crime.

19 Moreover, Schultz reasonably could have believed penalty phase experts and lay 20 witnesses suggested and identified in Petitioner’s habeas proffer would have presented the

21 same risk of rebuttal evidence of prior criminal act to the extent his psychosocial history was

22 relevant to Petitioner’s criminal history. (See e.g., Pet. Ex. 5 ¶¶ 5-6; Pet. Ex. 2 at Ex. H at 10-

23 12; Pet. Ex. 4 ¶ 29.)

24 Petitioner also faults Schultz for his decision not to enlist Petitioner’s assistance in 25 preparing his mother to testify. (Doc. No. 142 at 135.) He notes Ms. Walters surprise and

26 disappointment at Schultz’s decision not to present her testimony at the penalty phase, and her 27 statement that:

28 39 1 I would have been able to recount the circumstances of [Petitioner’s] upbringing 2 accurately and sympathetically without discussing his character. I made this clear to Mr. Schultz. 3

4 (Pet. Ex. 15 ¶ 6,) Ms. Walter’s habeas declaration goes on to detail a homelife of poverty,

5 deprivation, physical, emotional and sexual abuse, violence, drug use, and neglect with

6 frequent displacement of Petitioner and his siblings. (See Id. ¶¶ 7; Petition, Ex. 1 ¶¶ 13, 15-

7 24.)

8 Still, Petitioner does not support this argument with facts suggesting how he might have 9 fostered and facilitated such testimony while avoiding the risk of rebuttal. The record reflects

10 Petitioner’s indifference to and hatred of his mother expressed during pre-trial defense

11 interviews. (Pet. Ex. 23 at SH002055, SH002136; SH004453.) Petitioner’s mother, while he

12 was incarcerated in Nevada, expressed her fear of him and desire that he not contact her or

13 know her whereabouts upon release. (Pet. Ex. 23 at SH003963.) Also, Petitioner was in the

14 courtroom during the in limine hearing when this issue of his criminal history was discussed

15 and presumably he could have assisted Schultz were he willing and able to do so. (See RT

16 5113.)

17 Generally, the mere criticism of trial tactics is insufficient to establish ineffectiveness or 18 prejudice. United States v. Ferreira-Alameda, 815 F.2d 1251, 1254 (9th Cir. 1986); see also

19 Dows v. Wood, 211 F.3d 480, 487 (9th Cir. 2000) (counsel’s tactical decisions are given great 20 deference and need only be objectively reasonable). The state supreme court reasonably could

21 find that to be the case here. As this Court previously observed in its guilt phase order:

23 [T]he state supreme court reasonably could have found that Schultz did reasonably develop a social history and investigate mental defenses. The noted 24 record suggests Schultz reasonably relied upon his investigation and expert consultations in deciding not to further develop and present mental state 25 defenses at the guilt phase. (See SHCP, Ex. B ¶ 5); see also Harris v. Vasquez, 949 F.2d 1497, 1525 (9th Cir. 1990) (“It is certainly within the ‘wide range of 26 professionally competent assistance’ for an attorney to rely on properly selected experts.”); Williams v. Woodford, 384 F.3d 567, 611 (9th Cir. 2004) (holding 27 counsel’s decision not to investigate mental defense further was reasonable in light of conclusions of mental health experts). 28 40 1 (Doc. No. 135 at 45.)

2 For the reasons stated, the state supreme court reasonably could find unpersuasive 3 Petitioner’s suggestion the defense did not investigate the root facts underlying Petitioner’s

4 personal history. (See Doc. No. 51-1 ¶ 445.) The decision to forego presentation of mitigation

5 evidence was both in furtherance of the noted primary penalty defense, and not inconsistent

6 with Petitioner’s stated desire to forego a mitigation defense. Ms. Hart, counsel for Petitioner

7 on the motion for new trial, conceded Schultz made a tactical decision not to present mitigating

8 evidence at the penalty phase. (RT 5454.) Ms. Hart conceded that a failure to present any

9 mitigating evidence is not ineffective assistance where the decision is “fully responsible and

10 informed[.]” (RT 5532.) The trial court agreed in denying the motion for new trial by finding

11 that Schultz acted tactically and that “there was [mitigating evidence] available to [Schultz]

12 and [Schultz] was well aware of that.” (RT January 17, 1992 at 25-26.) That court found that

13 Schultz it was not ineffective by failing to present mitigating evidence. (Id.)

14 Accordingly, the state supreme court reasonably could find the defense investigation to 15 be timely and sufficient to inform Schultz’s choice of penalty defense and tactical decision not

16 to present mitigating evidence during the penalty phase. See Correll v. Ryan, 539 F.3d 938,

17 947, citing Smith v. Stewart, 189 F.3d 1004, 1008-09 (9th Cir. 1999) (“The failure to present

18 mitigating evidence during the penalty phase of a capital case, where there are no tactical

19 considerations involved, constitutes deficient performance, since competent counsel would 20 have made an effective case for mitigation.”); Gerlaugh v. Stewart, 129 F.3d 1027, 1033 (9th

21 Cir. 1997) (“A reasonable tactical choice based on an adequate inquiry is immune from attack

22 under Strickland.”); Lang v. Cullen, 725 F.Supp.2d 925, 962 (C.D. Cal. 2010) (trial counsel’s

23 strategic choices must be respected if they are based on professional judgment following a

24 reasonable investigation); cf. Sanders, 21 F.3d at 1457 (an attorney “can hardly be said to have

25 made a strategic choice when s/he [sic] has not yet obtained the facts on which such a decision

26 could be made”). Petitioner has not rebutted Strickland’s presumption of reasonableness. 27 Richter, 562 U.S. at 104 (quoting Strickland, 466 U.S. at 687). His stated desire not to present

28 41 1 any mitigation evidence (RT 5101-02) credits the presumption.

2 ii. Prejudice 3 Petitioner argues a reasonable probability of a different sentencing outcome had the 4 jury been presented with the proffered humanizing psychosocial mitigating evidence. (Doc.

5 No. 51-1, ¶¶ 433-568.)

6 Particularly, he argues his criminal history evidence could have been mitigating if tied 7 to his noted personal history evidence. (Doc. No. 51-1 ¶¶ 445-446, 455, 466, 513; see also

8 Pet. Ex. 2 at 27-28, 208.) For example, he argues his sexual activity with the corpse of seven-

9 year-old Katherine Higgins had mitigating value to the extent it resulted from “his own history

10 of sexual victimization, exacerbated by drug and alcohol abuse[.]” (Id.) He argues that absent

11 Schultz’s noted deficiencies:

12 The jury would have discerned the symptoms of significant brain impairments 13 and other impairments, including PTSD, ADHD, severe physical and sexual trauma, and alcohol and substance abuse. Had Schultz investigated and retained 14 experts, and thereafter provided them with adequate information, they would have concluded that Petitioner’s history contained sufficient indicia of organic 15 brain damage to warrant complete and thorough neuropsychological testing for various neurological and/or psychiatric disorders. 16

17 (Doc. No. 142 at 125.)

18 However, the California Supreme Court reasonably could find otherwise, as follows. 19 (1) Aggravating and Rebuttal Evidence 20 The prosecution presented aggravating evidence consisting Petitioner’s stipulation to 21 his 1983 second-degree felony burglary conviction, and five autopsy photographs of the capital

22 crime victims. (CT 291; RT 5127-31; Doc. No. 51-1, ¶¶ 460, 554); see also Dickey, 35 Cal.

23 4th at 894-900. The only penalty phase witness was police detective Stokes, who was called

24 by the prosecutor to provide foundation for the autopsy photographs. Dickey, 35 Cal. 4th at

25 894-900.

26 The jury had before it the circumstances of petitioner’s conviction for the capital crime 27 and special circumstances found true. (See Doc. No. 135 denying guilt phase claims.)

28 42 1 Furthermore, the noted facts underlying Petitioner’s prior criminal acts were available 2 in rebuttal of any character defense at the penalty trial.

3 (2) Totality of Evidence in Mitigation 4 The defense did not present evidence in mitigation at the penalty phase. Petitioner 5 points to his habeas proffer, discussed below, as suggesting:

6 [T]he extraordinary, horrific stressors to which [he] was exposed; the migratory 7 factors, poverty, violence, sexual perfidy and victimization that characterized his life; the failure of doctors to properly diagnose him, of police to protect him, 8 of social workers to provide him safe haven, of family law and juvenile courts to make decisions based on a realistic totality of factors, of probation officers to 9 understand and monitor his living conditions, or of prison authorities to provide psychotherapy, rehabilitation or other transition services. 10

11 (Doc. No. 51-1 at ¶ 477; see also Pet. Ex. 2 at 25.)

12 Predisposition to Mental Illness 13 Petitioner points to evidence of a family history of mental illness, criminal and violent 14 conduct and substance and sexual abuse. (Doc. No. 51-1 ¶¶ 447-448; Pet. Ex. 1 ¶ 11; Pet. Ex.

15 2 at 7, 39-41; Pet. Ex. 3 ¶¶ 19-21; Pet. Ex. 23 at SH001685, SH003450-53.) He observes

16 “schizophrenia, bipolar and suicidal depressive disorders, delusions” and “nervous

17 breakdowns” on his mother’s side. (Pet. Ex. 3 ¶ 21.)

18 Petitioner points to evidence that his great aunt was delusional, schizophrenic and 19 bipolar, and spent time in a mental institution. (Doc. No. 51-1, ¶ 485, citing Pet. Ex. 3 ¶¶ 1, 20 19-20.) Another aunt suffered paranoid schizophrenia. (Doc. No. 51-1 ¶ 488.) His

21 grandmother was institutionalized following a “nervous breakdown”, and another extended

22 relative once contemplated suicide. (Doc. No. 51-1 ¶ 486, citing Pet. Ex. 3 ¶¶ 1, 19-20.)

23 Petitioner alleges his father suffered unspecified mental disorders and obsessions and was

24 sadistic. (Id.; Pet. Ex. 6 ¶¶ 4-10.)

25 Physical and Sexual Abuse 26 Petitioner points to evidence of multigenerational physical and sexual abuse. (Doc. No. 27 51-1 ¶¶ 501-508; Pet. Ex. 23 at SH001636-84, SH001713-16.) He observes cruel and sexual

28 43 1 abuse by his father, Donald Dickey. (Id., citing Boyde, 404 F.3d at 1176) (trial counsel’s

2 failure in death case to present evidence of physical abuse and family history of sexual abuse

3 requires evidentiary hearing).) He observes evidence of multigenerational forcible rape and

4 incest including by his father whom he describes as a sexual predator. (See Pet. Ex. 1 ¶¶ 4-7;

5 Pet. Ex. 2 at 10-13, 21-23, 37, 40, 49, 58; Pet. Ex. 3 ¶ 12; Pet. Ex. 5 ¶¶ 5-6; Pet. Ex. 6 ¶¶ 4-5;

6 Pet. Ex. 7 ¶¶ 7, 14; Pet. Ex. 8 ¶¶ 6-7.) He points to evidence his father sexually molested and

7 assaulted relatives and his own daughter. (Pet. Ex. 2 at 49; Pet. Ex. 4 ¶ 5; Pet. Ex. 5 ¶¶ 5-6;

8 Pet. Ex. 15 at 91; Pet. Ex. 23 at SH000747-49, SH04459-61.) He notes his father’s 1979

9 conviction of molesting his daughter Melissa. (Pet. Ex. 23 at SH002709.) He points to

10 evidence his father enlisted him and his brothers in the molestation of his sister Melissa. (See

11 Pet. Ex. 5 ¶ 5.)

12 He points to evidence he and his cousins and possibly others became sexually active 13 with each other during their youth. (Pet. Ex. 2 at 22-24, 49, 56-60.)

14 He points to evidence his father and mother physically abused each other as well as 15 Petitioner and his siblings. (See Pet. Ex. 1 ¶ 4; Pet. Ex. 2 at 10-11, 22-26, 46-49, 59, 91, 98;

16 Pet. Ex. 4 ¶¶ 8, 10, 19; Pet. Ex. 5 ¶¶ 5-6; Pet. Ex. 7 ¶¶ 8-9, 19; Pet. Ex. 8 ¶ 4; Pet. Ex. 15 ¶ 7;

17 Pet. Ex. 17 ¶¶ 5-7.)

18 He points to evidence his mother had sex with another man in front of her children 19 including Petitioner. (Pet. Ex. 15 ¶ 7.) 20 He points to his own act of necrophilia at age seventeen which included sexual contact 21 with the corpse of a seven-year-old girl he took from a Reno, Nevada mortuary, for which he

22 received an adult conviction of second-degree burglary. (Pet. Ex. 2, at 26-27.)

23 Poverty and Neglect 24 Petitioner, born in 1964 in Tulare County, California, is one of four children of Linda 25 and Donald Dickey. (Pet. Ex. 23 at SH002709.) His parents divorced in 1979. (Id.)

26 Petitioner points his Dust Bowl heritage and history of multigenerational poverty. 27 (Pet. Ex. 2 at 23; id. at SH003282.)

28 44 1 Petitioner points to evidence that as a child he and his siblings experienced extreme 2 poverty and neglect. (Pet. Ex. 2 at 6-7, 17-18, 29-38; Pet. Ex. 4 ¶¶ 14-16; Pet. Ex. 5 ¶¶ 14-16;

3 Pet. Ex. 15 ¶ 7; Pet. Ex. 16 ¶ 2; Pet. Ex. 17 ¶ 10; Pet. Ex. 18 ¶ 3.) He and his siblings went to

4 grade school in tattered clothes, dirty and covered in bruises; the school provided food and

5 clothes to him and his family. (Doc. No. 51-1, ¶ 478, citing Pet. Ex. 16 ¶ 2.)

6 Petitioner and his siblings were teased about such things and viewed as the trash of the 7 town (id., ¶ 479, citing Pet. Ex. 17 ¶ 10), and as outsiders (id., ¶ 480, citing Pet. Ex. 18 ¶ 3).

8 His family was socially isolated, disliked, and deprived. (Id., ¶ 481-82, citing Pet. Ex. 4 ¶¶ 14-

9 16; Pet. Ex. 5 ¶¶ 14-16; Pet. Ex. 2 at 141.)

10 In 1971, Petitioner and his siblings were subject of a petition for juvenile dependency 11 due to parental neglect. (Pet. Ex. 23 at SH000002-10.) This even though it was noted therein

12 the children did not appear malnourished, neglected or abused. (Id.) Petitioner suggests

13 conditions for him did not improve during times he was in institutional care as a youth and

14 adolescent. (Doc. No. 51-1, ¶ 477.)

15 Petitioner points to his parents’ 1979 divorce as evidence of parental dysfunction and 16 disinterest, as a result of which he was placed in the custody of his paternal grandparents. (Pet.

17 Ex. 23 at SH001283.)

18 Criminal Activity and Domestic Violence 19 Petitioner points to his family’s criminal history including his father’s repeated arrests 20 and absences from the home while in jail. (Pet. Ex. 2 at 8, 25, 34; Pet. Ex. 15 ¶ 7; Pet. Ex. 23

21 at SH003423-26.)

22 Petitioner points to evidence of multigenerational domestic violence. (Doc. No. 51-1 ¶ 23 498; see also Pet. Ex. 3 ¶ 2.) He points to the noted violence within his family and that his

24 father beat his mother in front of Petitioner and his siblings and demanded she have sex with

25 other men while he watched (Pet. Ex. 23 at SH001260); and that his mother beat him and his

26 siblings. (Doc. No. 51-1 ¶ 500; see also Pet. Ex. 1 ¶¶ 18-22.) 27 Substance Abuse 28 45 1 Petitioner points to evidence of multigenerational alcohol abuse. (Pet. Ex. 2 at 30, 33.) 2 He points to evidence of alcoholism and drug abuse within his immediate family. (Doc. No.

3 51-1, ¶ 490; Pet. Ex. 2 at 8, 13; see also Pet. Ex. 3 ¶¶ 3, 5, 13, 18.) He points to his

4 predisposition for these conditions. (Doc. No. 51-1, ¶ 550, citing Pet. Ex. 2 at 152-53).

5 Particularly, he observes his father and mother used drugs and drank alcohol (Doc. No. 6 51-1, ¶¶ 491, 496, citing Pet. Ex. 3 ¶¶ 13-14); Pet. Ex. 4 ¶ 18; Pet. Ex. 8 ¶ 9) and that his

7 mother and aunt were drug dealers (Doc. No. 51-1, ¶¶ 492-93; Pet. Ex. 1 ¶¶ 13, 15, 17; Pet.

8 Ex. 2 at 24, 55; Pet. Ex. 4 ¶ 18.).

9 Petitioner suggests his predisposition to substance addiction manifested during his 10 youth and that he continued substance abuse to the time of the capital crime. (Doc. No. 51-1

11 ¶¶ 549-551; see also Pet. Ex. 2 at 152-53.) He points to evidence he and his siblings used

12 drugs and alcohol while growing up. (Doc. No. 51-1, ¶¶ 496-97, citing Pet. Ex. 5 ¶¶ 11, 16;

13 see also Pet. Ex. 2 at 78-79; Pet. Ex. 8 ¶¶ 9, 17.) Particularly, he points to his use of alcohol

14 and marijuana at age 14, progressing to use of LSD by age 16 and cocaine by age 22. (Doc.

15 No. 51-1, ¶¶ 524-526; see also Pet. Ex. 2 at 33, 47-48; People v. Lanphear II, 36 Cal. 3d 163,

16 168-169 (1984) (alcohol and drug use constitute mitigating evidence). He suggests such

17 substance abuse exacerbated his alleged brain and mental impairments. (Doc. No. 51-1 ¶¶

18 524-529; Pet. Ex. 2 at 29.)

19 Organic Brain and Mental Impairments 20 Petitioner argues his habeas mental health experts found evidence of frontal and left 21 lobe damage to his brain as well as mental impairments affecting his overall cognitive and

22 neurological functioning. (Doc. No. 51-1 ¶ 450.) Noting his adverse childhood experiences

23 and psychosocial stressors (see Pet. Ex. 2 at 181-87), he claims attention deficit and

24 hyperactivity disorder (“ADHD”) and a complicated and severe form of Post-Traumatic Stress

25 Disorder (“PTSD”). (Id.)

26 Petitioner supports the argument by pointing to evidence of depression, severe physical 27 and sexual trauma, alcohol and substance abuse, and nervous tic disorders developed during

28 46 1 childhood. (Doc. No. 51-1 ¶¶ 542-547; Pet. Ex. 2 at 27-30, 45, 50-51, 152-53; see id., Ex. H at

2 3-25; Pet. Ex. 19 ¶¶ 450, 509-516; Doc. No. 142 at 33, citing Pet. Ex. 4 ¶ 11.) He contends his

3 mother described him as a “disruptive and rebellious youngster that was causing control

4 problems both in the home and school setting.” (Pet. Ex. 23 at SH002333.) He points to

5 evidence that he struggled academically in high school, but graduated in 1983 placing 182 out

6 of 291 students, with an ending high school GPA of 2.37. (Pet. Ex. 23 at SH002270,

7 SH002344.)

8 Petitioner observes the findings of his noted habeas experts, neuropsychologist Dr. 9 Natasha Khazanov who evaluated him in 2005, and psychologist Dr. Barbara Counter who

10 evaluated him in 2007.

11 Dr. Khazanov measured Petitioner’s full-scale IQ at 109, but with some impairment in 12 memory, concentration and reading. (Pet. Ex. 2 at Ex. H at 4-6.)

13 Dr. Khazanov found that Petitioner demonstrated multiple indicia of brain damage and 14 impairment particularly in the frontal lobe suggesting impulse control and aggression issues.

15 (Doc. No. 142 at 106; see also Pet. Ex. 2 at 19-20, 31, 220-21; Pet. Ex. 2 at Ex. H at 7, 23-25.)

16 Dr. Khazanov opined that Petitioner suffered serious organic brain damage and underlying

17 mental impairments that left him unable to respond rationally to situations facing him,

18 especially so when combined with substance abuse. (Pet. Ex. 2 at Ex. H at 23.)

19 Particularly, Dr. Khazanov reported: 20 [P]ossible cognitive, psychiatric and behavioral deficits which could 21 significantly affect [Petitioner’s] capacity to accurately perceive, store, retain, and relate critical information. The deficits suggested in these records 22 (primarily affecting the frontal lobes), especially in combination with other conditions or impairments, would most likely render [Petitioner] severely 23 impaired in many areas of functioning. 24

25 (Pet. Ex. 2 at Ex. H at 2.)

26 Dr. Khazanov opined that at the time of the capital crime, Petitioner suffered “from the 27 cumulative effects of longstanding brain damage, childhood trauma, depression, chronic

28 47 1 substance abuse and dependence and post traumatic stress disorder. (Id. at 24.) She opined

2 that a competent neuropsychologist could have and should have presented such evidence as

3 part of the mitigating factors identified in [Penal Code section] 190.3.” (Id. at 25.)

4 Dr. Khazanov averred that decompensation from organic brain damage and mental 5 illnesses “contributed directly to [Petitioner’s] incompetency to proceed at the penalty phase of

6 the trial [and that Petitioner] was unable to assist his counsel in a rational manner in the

7 presentation and defense of the penalty phase of the trial” (id.), including as to the breakdown

8 in communication with Schultz and the waiver the presence in the courtroom (id.).

9 Finally, Dr. Khazanov faulted defense trial experts Drs. Hackett and Thompson for 10 failing to address the possibility of neuropsychological deficits despite the presence of risk

11 factors and motor tic symptoms noted in the habeas psychosocial history proffer. (Pet. Ex. 2 at

12 Ex. H at 9-12.) She discounted their opinions as uninformed by accurate data of Petitioner’s

13 emotional, cognitive and behavioral limitations, which she suggests implicates the possibility

14 of organic brain damage. (Id. at 10.)

15 Dr. Counter prepared a psychosocial history based upon her 2007 examination of 16 Petitioner. (Pet. Ex. 2.) Therein, Dr. Counter detailed Petitioner’s near life-long symptoms of

17 organic brain damage and dysfunction noted by Dr. Khazanov. (Doc. No. 51-1 ¶ 514; Pet. Ex.

18 2 at 26.) These symptoms included Petitioner’s obvious motor tic disorder which presented as

19 nervous facial twitches, rapid blinking, sniffing, repeated lip licking, snorting and “Ah” 20 sounds, as well as other odd, self-stimulatory behaviors, and possibly related adolescent

21 ADHD (Pet. Ex. 2 at 5, 9, 27-32) and PTSD (id., at 208). Relatedly, Dr. Counter noted

22 evidence that during his teens, Petitioner was described as anxious and jittery, moving

23 continuously. (Id., at 31; see also Pet. Ex. 2 at 211-14.) The record includes habeas

24 declarations from family members and acquaintances who observed Petitioner’s nervous tic.

25 (See Pet. Ex. 4 ¶ 11; Pet. Ex. 8 ¶ 12; Pet. Ex. 16 ¶ 5.)

26 Dr. Counter included in her social history the above opinions of Dr. Khazanov. (Pet. 27 Ex. 2 and Ex. H thereto.)

28 48 1 Dr. Counter also included reference to Petitioner’s 1981 examination by court 2 appointed psychiatrist, Dr. William Terry, during proceedings in Nevada on the burglary

3 charge. (Pet. Ex. 2 at 87-89.) Dr. Terry felt Petitioner was in need of some kind of psychiatric

4 attention. (Pet. Ex. 23 at SH000191.) Dr. Terry concluded that Petitioner’s previous history

5 was “compatible with a diagnosis of attention deficit disorder with hyperactivity and a

6 continual depressive state which is often found in adolescents who previously have met the

7 criteria for being hyperactive[.]” (Pet. Ex. 2 at 89; Pet. Ex. 23 SH002284.)

8 Criminal and Institutional History 9 Petitioner suggests mitigation value from noted evidence of: (i) his juvenile 10 adjudication relating to the multi-year molestation of his younger sister, (Pet. Ex. 23 at

11 SH000013-85), and (ii) his adult conviction for theft and sexual abuse of the corpse of a seven-

12 year-old girl (Pet. Ex. 23 SH000086-00543). (See Doc. No. 51-1 ¶¶ 443-444.)

13 Incarceration and Attempts to Reform 14 Petitioner argues mitigating aspects of his incarceration in Nevada and California 15 pending the capital trial. As to the former, he points to evidence of the harsh effects of

16 imprisonment. (Pet. Ex. 2 at 172-79.) As to the latter, he points to evidence of his

17 detoxification from cocaine and religious conversion while in jail awaiting trial, including

18 work with a pastor at the jail. (Doc. No. 51-1 ¶ 530; see also Pet. Ex. 2 at 5, 23, 34.)

19 (3) Petitioner Has Not Shown Prejudice 20 Petitioner argues prejudice from Schultz’s alleged deficiencies because the jury would 21 have seen from his unpresented proffered evidence the mitigating effects of his extreme mental

22 or emotional disturbance and impairment by mental disease, defect and intoxication. (See Doc.

23 No. 142 at 125-26, citing Penal Code section 190.2(d), (h), (k); see also RT 5135-36; Pet. Ex. 2

24 at 19.) He argues that jury would have seen that he was depressed and had thoughts of hurting

25 himself on the day of his act of necrophilia. (See Pet. Ex. 2 at 28.)

26 Petitioner supports these arguments by pointing out that even without presentation of 27 mitigating evidence, the jury found the sentencing determination to be a close call. The jury

28 49 1 deliberated five hours over two days during the course of which they submitted questions to the

2 trial court and had testimony re-read. (CT 477-480.) He suggests this shows and that “at least

3 one juror would have struck a different balance between life and death” had the mitigating

4 proffer evidence been presented. (Doc. No. 142 at 131, citing Wiggins, 539 U.S. at 537.)

5 However, the state supreme court reasonably could find the totality of the mitigation 6 evidence to be insubstantial and outweighed by the aggravating and rebuttal evidence in the

7 record, such that there does not remain a reasonable probability of a different outcome. (Doc.

8 No. 142 at 131, citing Porter, 558 U.S. at 44 (quoting Strickland, 466 U.S. at 693–94); see also

9 Apelt, 878 F.3d at 815-16 (denying habeas relief even though trial counsel failed to uncover

10 mitigating evidence that the defendant grew up very poor, had an alcoholic and violent father

11 who beat his children with an iron rod, was raped twice as a child, and suffered from mental

12 illness); Cain v. Chappell, 870 F.3d 1003, 1021 (9th Cir. 2017) (denying habeas relief despite

13 new mitigating evidence that the defendant was severely beaten and punished by his

14 stepmother, had an untreated childhood head injury, and had learning disabilities).

15 Only when “the likelihood of a different result [is] substantial, not just conceivable,” 16 has the petitioner met Strickland’s demand that defense errors were “so serious as to deprive

17 [him] of a fair trial.” Id. at 104 (quoting Strickland, 466 U.S. at 687). The state supreme court

18 reasonably could find Petitioner did not carry this burden, as follows.

19 Aggravating and Rebuttal Evidence was Substantial 20 The circumstances surrounding Petitioner’s participation the capital crimes, that he 21 aided and abetted the killings with an intent to kill, suggest substantial aggravating weight.

22 (See Doc. No. 135.) As this Court previously observed:

23 Buchanan testified that on the night of the murders he overheard RC and 24 petitioner whispering about going to get money from some place, a task for which they armed themselves even though the victims were old and infirmed. 25 (RT 4138-42, 4239-42, 4662-63, 4733.) At that time neither RC nor petitioner had any money. (RT 4348-52.) Goldman and Buchanan observed RC and 26 petitioner preparing for the crimes. Goldman (RT 4534) and Buchanan (RT 4663-65) saw petitioner take the venetian blind from the closet to the bedroom 27 where RC was waiting (RT 4534, 4663-65); petitioner returned the blind to the closet after the cord was removed. (RT 4534-37, 4666.) Petitioner’s fingerprint 28 50 was found on the blind from which cord used in the crimes was removed. (RT 1 4573.) 2 Buchanan saw a knife on the bed in the bedroom just before RC and petitioner left the apartment. (RT 4706-07.) Buchanan saw RC and petitioner leave the 3 apartment together that night. (RT 4674-75.) Goldman identified a knife at the murder scene as identical to one in the apartment kitchen; (RT 4396-97); she 4 had seen petitioner looking through the kitchen drawer where the knife was kept. (RT 4343-44.) Both Buchanan and Goldman testified that petitioner and 5 RC returned to the apartment together about two hours later (RT 4337-49, 4662- 76), with $700 they did not have earlier that evening (RT 4361, 4675-76), and 6 spent some of this money on drugs. (RT 4348, 4352, 4675-77.) Buchanan testified that while driving RC to the Easy 8 Motel hours after the crimes, 7 petitioner disposed of clothing, apparently evidence from the murders. (RT 4684-85.) 8 Furthermore, Buchanan (RT 4980) and Goldman (RT 4357-62) testified to 9 petitioner’s admission that he participated in the crimes with RC. 10 […] 11 A reasonable juror could have concluded weapons were unnecessary in the 12 absence of intent to kill. Victim Caton was in her seventies; victim Freiri was partially paralyzed, wore a leg brace and used a cane to get around. (RT 4138- 13 42, 4239-42.) Both victims presumably knew the perpetrators and could have identified them to the authorities. During the crimes, RC assaulted Mr. Freiri 14 leaving him apparently dead (RT 4691) and then “went berserk” and assaulted Ms. Caton. (RT 4360-61.) 15 The evidentiary record otherwise could reasonably support a plan to kill the 16 victims. The murders appear callous and brutal and were committed with the cord and knife brought to the crime scene by petitioner and RC. (See e.g., 17 SSHCP, Ex.’s 9-11.) The lack of proximity between the victims could reasonably suggest some significant amount of time and cooperation between 18 perpetrators was involved. There is no suggestion in the record that petitioner tried to intervene in the assaults or aid the victims; for example Goldman 19 testified that petitioner did nothing as RC assaulted his grandmother. (RT 4359- 61.) 20 Additionally, the record suggests that RC may have been in contact with 21 petitioner after RC left the Harvard Avenue apartment following the crimes; possibly suggesting the two were involved in the murders. (RT 4841-43.) After 22 the crimes, petitioner was initially emotional and depressed about his confessed involvement, but petitioner’s mood improved when he learned all of the victims 23 and RC were dead. (RT 4378.) Even so, petitioner apparently threatened Goldman should she reveal his admitted role in the crimes. (RT 4375-77, 4616.) 24

25 (Doc. No. 135 at 197-99 [regarding guilt claim XXVI].)

26 The noted character rebuttal evidence that Petitioner molested his younger sister over a 27 period of years and engaged in sexual activity with the corpse of a young girl reasonably

28 51 1 suggests substantial aggravating weight, as Petitioner and Schultz both recognized. (See Pet.

2 Ex. 12 ¶ 13; Pet. Ex. 23 at SH002091-94.) Moreover, the habeas proffer includes evidence

3 Petitioner threatened his little sister Melissa, whom he molested for a number of years, with

4 violence if she refused intercourse with him. (Pet. Ex. 2 at 65.)

5 Total Mitigating Evidence was Insubstantial 6 Schultz argued lingering doubt to the penalty phase jury based on guilt phase defenses 7 raised and rejected. (See Doc. No. 135.) The state supreme court reasonably could find

8 minimal mitigating value in the lingering doubt defense.

9 The social history proffer provides context to Petitioner’s difficult circumstances at the 10 time of the crime, but these circumstances were largely known to the jury. The jury heard

11 evidence that Petitioner was unemployed and lacked funds and regularly used drugs around the

12 time of the capital crime. Petitioner testified at the guilt phase to his use of cocaine during the

13 summer of 1988. (RT 4901-07; see also Pet. Ex. 2 at 29.) The jury was also aware of

14 testimony that no one in the Harvard Avenue apartment had money to buy drugs at the time of

15 the crime; that the crime was committed to get money to buy drugs. (See RT 4675-76; CT 19-

16 24; see also RT February 21, 1992 at 19-20; see Doc. No. 135 at 90; RT 4875.)

17 The social history proffer also is equivocal. Noted evidence of Petitioner’s abused and 18 dysfunctional upbringing appears countered by his mother’s proposed testimony that he “had

19 no physical problems at birth . . . was a healthy child while growing up and did not suffer any 20 unusual diseases or medical problems.” (Pet. Ex. 15 ¶ 7.) Petitioner’s claimed efforts are

21 reform appear diminished by evidence he showed no remorse for the capital crimes. (See e.g.,

22 RT 5488.)

23 The mental state proffer appears subject to discount and lacks mitigating weight. This 24 Court, in its order denying guilt phase claims, observed that:

25 In 2005, defense habeas expert, clinical psychologist Dr. Natasha Khazanov 26 examined petitioner over two days looking for brain damage and cognitive impairment. (SSHCP, Ex. 2 at 265.) Dr. Khazanov determined that petitioner 27 had an IQ in the average range and exhibited multiple indicia of serious organic brain damage and impairment exacerbated by substance abuse disorder, 28 52 affecting his ability to plan and rationally respond to his environment and 1 function in everyday life (id. at 287-89). Dr. Khazanov suggests the damage to petitioner’s brain was present at the time of his trial as was the need for a 2 neurological assessment. (Id.) She suggests the neurological evidence would have been mitigating at petitioner’s penalty phase. (Id.) 3 Dr. Khazanov faults trial experts, Drs. Hackett and Thompson for not 4 addressing the possibility of neuropsychological defenses including frontal lobe deficits. (Id. at 273-74.) Especially so given then existing multiple risk factors 5 of brain damage including childhood trauma and post-traumatic stress disorder (“PTSD”), hyperactivity and probable attention deficient and hyperactivity 6 disorder (“ADHD”), chronic motor tic disorder, a predisposition to polysubstance abuse, depression, and related clinical symptoms in petitioner’s 7 social history. (Id. at 265-89.) She stated that these mental conditions impaired petitioner’s ability to perceive, plan and make decisions and control impulses. 8 (Id.) 9 In 2007, defense habeas expert, Dr. Barbara Counter, a clinical and forensic 10 psychologist, reviewed petitioner’s social history documents and interviewed him in prison for about 8 hours. She provided habeas counsel with a 11 psychosocial history that found indicia of childhood ADHD, chronic motor tic disorder, depression, and post-traumatic stress disorder. (See SSHCP, Ex. 2 at 12 27-28.) Dr. Counter’s report chronicles petitioner’s family history of mental illness, abuse (drug, alcohol, physical and sexual), domestic violence and crime. 13 (Id. at 14-20.) She notes petitioner’s prior felony conviction in Nevada involving apparent necrophilia during the course of which petitioner received a 14 psychiatric evaluation by Dr. William Terry, who found petitioner’s history to be compatible with a diagnosis of ADHD and depression (id. at 23-24, 94-98) 15 and recommended psychiatric treatment of petitioner’s difficulties relating to other people. 16 However, the state supreme court reasonably could have found the habeas 17 proffer insufficient to suggest Schultz was prejudicially deficient in investigating and presenting social and mental state history and defense 18 information. The record could reasonably suggest that petitioner then functioned at a level inconsistent with a significant mental state deficit or impairment. 19 Petitioner graduated from high school in June of 1983 (id. at 102), approximately 5 years prior to the instant crimes. Later, while incarcerated in 20 Nevada for the noted prior felony, he received certificates for education courses taken while in prison. (Id. at 108.) Several months before the instant crimes, he 21 graduated from truck driving school at the top of his class. (Id. at 110.) Petitioner worked as a roofer and at an auto parts store just prior to his arrest for 22 the instant crimes. (Id. at 112.) 23 Notably, the habeas experts examined petitioner 17 or more years after the instant crimes. The state supreme court reasonably could have found the habeas 24 experts’ conclusions as to petitioner’s mental state at the time of the crime to be speculative. Especially so given the contrary conclusions reached by experts 25 examining petitioner more proximal to his trial. In this regard, the state supreme court presumptively considered a 1992 examination of petitioner by prison 26 psychologist M. Lyons, who found “no signs or symptoms of psychosis, organicity or serious psychological impairment in social functioning.” (Id. at 27 135.) Around that time petitioner also was examined by prison psychiatrist Dr. John Geiger, who also found “no mental disorder ... or condition of functioning 28 53 which would indicate additional psychiatric concern.” (Id. at 136.) 1 Petitioner does not demonstrate that any of the defense mental health 2 professionals who evaluated petitioner prior to trial requested or required then existing information that was not provided to them by the defense team. 3 Furthermore, the state supreme court reasonably could have rejected petitioner’s argument that Schultz was or should have been on notice of the need to further 4 investigate petitioner’s mental state defenses. Petitioner bases this argument on his habeas experts’ suggestion that the need for such further investigation would 5 have been evident to mental health professionals at the time of trial. But disagreement among experts is not alone a basis to find Schultz deficient. See 6 e.g., Toler v. Troutt, 2015 WL 1408490, at *9 (W.D. Okla., Feb. 20, 2015) (medical difference of opinion not actionable under the Eighth Amendment). 7 Additionally, the state supreme court could reasonably have found that the 8 primary defense theory, that petitioner was not present during or involved in the crimes, would not have been advanced by further investigation and 9 consideration of matters relating to petitioner’s social and mental history. (See claim XXVI, XXVIII.) Petitioner has not otherwise shown facts and 10 circumstances surrounding the crimes reasonably placed Schultz on notice of any need for further social history and mental state defense investigation. 11 Accordingly, a fair-minded jurist could have found that petitioner failed to 12 overcome the strong presumption that Schultz made decisions relating to investigation and presentation of petitioner’s social history and mental state in 13 the exercise of professional judgment. Strickland, 466 U.S. at 690; see also United States v. Farr, 297 F.3d 651, 658 (7th Cir. 2002) (counsel “is not 14 obligated to ... personally investigate every conceivable lead”); Morris v. State of California, 966 F.2d 448, 456 (9th Cir. 1991) (a defendant seeking to prove 15 ineffective assistance of counsel “must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial 16 strategy). “The mere criticism of trial tactics is insufficient to establish ineffectiveness or prejudice.” Ferreira-Alameda, 815 F.2d at 1254. Here, 17 counsel’s noted primary defense theory could be seen as reasonably furthered by the guilt phase investigation and presentation. 18 (Doc. No. 135 at 47-48.) 19 (Doc. No. 135 at 46-48; see also Pet. Ex 2 at 19-27, 77-79, 201-02.) 20 Petitioner, in arguing the penalty phase claims has not demonstrated otherwise. See 21 Boyde, 404 F.3d at 1168-69 (holding that if new mental health evidence, obtained after the

22 trial, were sufficient to establish a petitioner’s innocence, the petitioner could “always provide

23 a showing of factual innocence by hiring psychiatric experts who would reach a favorable

24 conclusion.”).

25 Defense expert evaluation of Petitioner at the time of the new trial motion is in material 26 part consistent with the opinions of the defense trial experts (see e.g., Doc. No. 135 at 45) and 27 Petitioner’s demeanor at trial. Counsel on the motion for new trial, Ms. Hart, retained

28 54 1 psychiatrist Dr. Callahan to examine Petitioner with a view toward evidence that might have

2 been presented in mitigation at the penalty phase in support of sentencing factor “k”. (RT

3 5463.)

4 Dr. Callahan examined Petitioner during the summer of 1991, several months after the 5 jury’s death verdict. (RT 5461.) Dr. Callahan found mitigating evidence in the form of

6 Petitioner’s chaotic upbringing by unstable, abusive parents who engaged in degenerate and

7 criminal behavior (RT 5471); a home life where Petitioner was surrounded by and engaged in

8 sexual psychopathy (RT 5475-78); and Petitioner’s history of alcohol and substance abuse (RT

9 5478). Dr. Callahan found Petitioner’s act of necrophilia demonstrative of “significant

10 psychopathology.” (RT 5481.)

11 Even so, Dr. Callahan found no evidence Petitioner suffered from a thought disorder. 12 (RT 5486.) He found no mental disease of defect other than Petitioner’s sexual

13 preoccupations. (Id.) He found Petitioner with only a passive inadequate personality. (RT

14 5483.) He found Petitioner not to show remorse for the capital crime, but rather to deny

15 involvement in the crime. (RT 5488.)

16 The state supreme court reasonably could discount the habeas proffered evidence that 17 Petitioner was mentally impaired or altered by substance abuse at the time of the crimes.

18 Petitioner has not pointed to evidence of such in the trial record. See Martinez v. Ryan, 926 F.

19 3d 1215, 1234 (9th Cir. 2019) (“a sentencing court may not treat mitigating evidence of a 20 defendant's background or character as irrelevant or non-mitigating as a matter of law just

21 because it lacks a causal connection to the crime [citations]. The sentencer may, however,

22 consider causal nexus ... as a factor in determining the weight or significance of mitigating

23 evidence.”); see also Hedlund v. Ryan, 854 F.3d 557, 587 n.23 (9th Cir. 2017) (stating that,

24 under Eddings, “a court is free to assign less weight to mitigating factors that did not influence

25 a defendant’s conduct at the time of the crime”).

26 It follows that the state supreme court reasonably could find Petitioner’s proffer to be 27 only minimally probative of mitigating circumstances that he may have acted under extreme

28 55 1 mental or emotional disturbance, or was impaired by mental disease or defect, or presents a

2 sympathetic character. The jury was instructed in these regards and considered the

3 prosecutor’s argument at closing which noted the absence of such evidence. (Doc. No. 51-1,

4 n.37, n.38, citing RT 5135-36.)

5 The California Supreme Court has acknowledged Supreme Court authority that the 6 “high requirement of reliability” required in capital sentencing “is attained when the

7 prosecution has discharged its burden of proof at the guilt and penalty phases pursuant to the

8 rules of evidence and within the guidelines of a constitutional death penalty statute, the death

9 verdict has been returned under proper instructions and procedures, and the trier of the penalty

10 has duly considered the relevant mitigating evidence, if any, which the defendant has chosen to

11 present. A judgment of death entered in conformity with these rigorous standards does not

12 violate the Eighth Amendment reliability requirements.” People v. Bloom, 48 Cal. 3d 1194,

13 1228 (1989).

14 Accordingly, the state supreme court reasonably could find the aggravating 15 circumstances of the capital crime and special circumstances found true and the noted rebuttal

16 evidence substantially outweigh the totality of the mitigating evidence. Especially so given the

17 primary defense theory that Petitioner played a passive aider and abettor role in a crime meant

18 to gain money for drugs, the lingering doubt value of which might be discounted by a

19 mitigation defense that included details of his prior criminal acts and a post hac mental state 20 defense.

21 iii. Conclusions 22 A fair-minded jurist could find that Petitioner failed to establish counsel’s performance 23 fell below an objective standard of reasonableness and that absent counsel’s alleged

24 deficiencies, there remains a reasonable probability of a different outcome. Strickland, 466

25 U.S. at 694.

26 The California Supreme Court’s rejection of these claims on the merits was neither 27 contrary to, nor an unreasonable application of Strickland, nor based upon an unreasonable

28 56 1 determination of the facts in light of the evidence presented in the state court proceeding. 28

2 U.S.C. § 2254(d).

3 Claims III(C-E) shall be denied. 4 3. Claim II(I) 5 Petitioner alleges counsel Schultz was ineffective by failing to disclose the complete 6 breakdown of the attorney-client relationship, declare an irreconcilable conflict, request a

7 hearing pursuant to People v. Marsden, 2 Cal. 3d. 118 (1970), and move to withdraw, violating

8 his rights under the Fifth, Sixth, Eighth and Fourteenth Amendments. (Doc. No. 51-1 ¶¶ 208-

9 214, 342-64.)

10 a. Supplemental Legal Standards 11 It is clearly established that the right to the assistance of counsel, as guaranteed by the 12 Sixth Amendment of the United States Constitution entitles a defendant to representation that

13 is free from conflicts. Wood v. Georgia, 450 U.S. 261, 271 (1981).

14 A breakdown in the attorney-client relationship can result in a denial of the right to 15 effective assistance of counsel. Frazer v. United States, 18 F.3d 778, 782-83, 785 (9th Cir.

16 1994); see also Brown v. Craven, 424 F.2d. 1166, 1169-70 (9th Cir. 1970) (trial court’s failure

17 to conduct inquiry into irreconcilable conflict arising from the client’s refusal to communicate

18 or cooperate with counsel resulted in denial of effective assistance of counsel); Schell v. Witek,

19 218 F.3d 1017, 1025, (9th Cir. 2000) (citing Smith v. Lockhart, 923 F.2d 1314, 1320 (8th Cir. 20 1991)) (the overarching constitutional question is whether the attorney-client conflict has

21 become so great that “[i]t resulted in a total lack of communication or other significant

22 impediment that resulted in turn in an attorney-client relationship that fell short of that required

23 by the Sixth Amendment.”).

24 In order to establish a violation of the Sixth Amendment, a defendant who raised no 25 objection at trial must demonstrate that an actual conflict of interest adversely affected his

26 lawyer’s performance. Cuyler v. Sullivan, 446 U.S. 335, 348 (1980). The Supreme Court has 27 defined an “actual conflict” by the effect a potential conflict had on counsel’s performance.

28 57 1 Houston v. Schomig, 533 F.3d 1076, 1081 (9th Cir. 2008) (citing Mickens v. Taylor, 535 U.S.

2 162, 171 (2002)).

3 Prejudice may be presumed in cases where a “serious conflict” between defendant and 4 counsel gives rise to constructive denial of counsel. Perry v. Leeke, 488 U.S. 272, 278-79

5 (1989); see also Schell, 218 F.3d 1027 (“In the event that the trial court determines that a

6 serious conflict did exist that resulted in the constructive denial of assistance of counsel, no

7 further showing of prejudice is required; and Schell's trial shall be presumed to have been

8 unfair.”); see also Strickland, 466 U.S. at 692 (“Actual or constructive denial of the assistance

9 of counsel altogether is legally presumed to result in prejudice.”).

10 A lawyer’s violation of ethical norms does not make the lawyer per se ineffective. Burt 11 v. Titlow, 571 U.S. 12, 18 (2013).

12 b. State Court Direct and Collateral Review 13 Petitioner presented claim II and all its subclaims in the second state exhaustion petition 14 (see Lod. Doc. No. 30 at 105-99) and it was summarily denied on the merits (Lod. Doc. No.

15 31, Order Denying Cal. Pet., In re Colin Raker Dickey, No. S165302 (May 29, 2012)).

16 Relatedly, Petitioner’s claim the trial court erred by not holding a Marsden hearing was 17 considered and denied on the merits on direct appeal. Dickey, 35 Cal. 4th at 917-22.

18 c. Analysis 19 i. Deficient Performance 20 Petitioner argues Schultz was deficient by failing to disclose to the trial court that a 21 post-guilt phase breakdown in his relationship with Petitioner was so serious that it prevented

22 effective assistance of counsel, and by failing to withdraw as counsel. Petitioner supports the

23 argument by observing that he was dissatisfied with Schultz’s incompetent performance at the

24 guilt phase and that following the guilt phase verdict there was a complete breakdown of the

25 attorney-client relationship resulting in no communication between the two. (Doc. No. 51-1 ¶¶

26 343-345.) 27 Petitioner argues these impediments, combined with Schultz’s lack of preparation for 28 58 1 the penalty phase resulted in constructive denial of assistance of counsel at the penalty phase.7

2 See Daniels, 428 F.3d at 1201 (irreconcilable conflict found where distrust resulted in complete

3 breakdown in communication between counsel and client).

4 Petitioner argues the irreconcilable conflict was apparent in: (i) Schultz’s actions at an 5 in limine hearing just prior to the penalty trial, where Schultz incorrectly characterized

6 Petitioner’s Marsden request as a matter to be raised in a subsequent new trial motion; (ii)

7 Schultz’s failure to advise Petitioner on the latter’s request not to be personally present at the

8 penalty trial; and (iii) Schultz’s failure to present any mitigating evidence at the penalty trial.

9 (Doc. No. 51-1 ¶ 346; see also RT 5045-49; Pet. Ex. 12 ¶ 12.)

10 The California Supreme Court on direct appeal denied claimed Marsden error by the 11 trial court, stating that:

12 In [People v.] Marsden [(1970) 2 Cal. 3d 118], we said: [A] judge who denies a 13 motion for substitution of attorneys solely on the basis of his courtroom observations, despite a defendant's offer to relate specific instances of 14 misconduct, abuses the exercise of his discretion to determine the competency of the attorney. A judicial decision made without giving a party an opportunity 15 to present argument or evidence in support of his contention is lacking in all the attributes of a judicial determination. (Spector v. Superior Court (1961) 55 Cal. 16 2d 839, 843 [13 Cal.Rptr. 189, 361 P.2d 909].) (Marsden, supra, 2 Cal. 3d at p. 124 [84 Cal.Rptr. 156, 465 P.2d 44].)” (People v. Jones (2003) 29 Cal. 4th 17 1229, 1244, 131 Cal.Rptr.2d 468, 64 P.3d 762.) 18 A defendant is entitled to have appointed counsel discharged upon a showing that counsel is not providing adequate representation or that counsel and 19 defendant have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result. (People v. Earp (1999) 20 Cal. 4th 20 826, 876 [85 Cal.Rptr.2d 857, 978 P.2d 15] (Earp ); People v. Memro (1995) 11 Cal. 4th 786, 857 [47 Cal.Rptr.2d 219, 905 P.2d 1305] (Memro ).) (People v. 21 Jones, supra, 29 Cal. 4th at pp. 1244–1245, 131 Cal.Rptr.2d 468, 64 P.3d 762.) 22 Defendant contends that, following the guilt phase of the trial, he sought to make a motion for the appointment of different counsel to assist him in the 23 penalty phase, and the court, without conducting the hearing required by Marsden, prejudicially erred by declining to rule on his motion until the penalty 24 phase was concluded. 25 The Attorney General responds that defendant was not making a motion for the appointment of substitute counsel to represent him in the penalty phase. Rather, 26 the Attorney General contends, defendant moved for the appointment of 27 7 Petitioner’s claim Schultz’s lack of preparation for the penalty phase denied him counsel fails for reasons stated 28 above in claims III(C-E). 59 separate counsel for the purposes of preparing a motion for a new trial based 1 on, among other grounds, incompetence of counsel during the guilt phase. Once the court ascertained that defendant was seeking the appointment of separate 2 counsel to prepare a new trial motion, the Attorney General argues, the court properly declined to rule on it until the trial was over, at which time separate 3 counsel for that purpose was appointed. 4 While the matter is not entirely free from doubt, doubt engendered largely by the court's confused and confusing references to Marsden, we agree with the 5 Attorney General's characterization of defendant's motion. 6 Defendant's trial counsel, Marvin F. Schultz, clearly framed the matter as, not a motion for substitute counsel to represent defendant in the penalty phase, but 7 rather as a motion for the appointment of separate counsel to represent defendant in the preparation of a motion for a new trial, which motion, counsel 8 said, was likely to include, among other grounds, allegations *** that he acted incompetently in the guilt phase. The disagreements between defendant and 9 himself, counsel said, regarded “trial tactic decisions that were made on witnesses who were called and not called and the way some things were 10 presented.” The idea for the appointment of separate counsel for this limited purpose, according to counsel, was his, not defendant's.12 11

12 ----------------------------------------FOOTNOTE--------------------- 13 n.12 “MR. SCHULTZ: I have explained to Mr. Dickey the ground—the types of 14 things that could be presented to the Court as part of a motion for a new trial when the time is appropriate for that motion, and that there are some 15 disagreements between Mr. Dickey and I as to some trial tactic decisions that were made on witnesses who were called and not called and the way some 16 things in the case were presented. 17 In terms of including in a motion for new trial any issues of incompetency of counsel I advised Mr. Dickey that, obviously, I think my decisions were correct. 18 And I understand why he would disagree with that. But in terms of being able to present that issue as a motion for a new trial, it was my advice to Mr. Dickey 19 that the request should be made to the Court for an attorney to—a separate attorney to review the record, considering we do have an existing transcript that 20 somebody can review at this point, and determine whether or not he can consult with that attorney on the issues that he disagreed with me on, to determine 21 whether or not there was a legitimate basis or any basis for making a motion for new trial based on incompetence of counsel. 22 And I was concerned when Mr. Dickey presented the request to the Court that it 23 would include conversations that we had discussing the trial tactics and witnesses and things might come up. And I thought it was—it's not really a pure 24 Marsden hearing, but there are obviously disagreements as to tactics. And I think the only way that I can think of to resolve that issue was to have Mr. 25 Dickey request of the Court that the transcripts be reviewed by a separate attorney to determine whether or not there's basis for the motion for new trial on 26 the incompetency issue.” (Italics added.) 27 ------------------------------------END FOOTNOTE------------------ 28 60 1 The court asked defense counsel when defendant wished the matter to be heard. 2 Counsel responded, “Well, my understanding procedurally is that the motion for new trial would have to wait until after the penalty phase.” The court replied, 3 “That was my thinking.” 4 The court then addressed defendant. It referred to Marsden, and it stated, incorrectly, that Marsden hearings are not to be conducted “in the middle of a 5 trial.” (Cf. Memro, supra, 11 Cal. 4th at p. 856, 47 Cal.Rptr.2d 219, 905 P.2d 1305 [the defendant made several Marsden motions, including one just before 6 the penalty trial began].) However, the court added, “I'll hear whatever you have to say. I may have to tell you at the end of the statement that this is not the time 7 to get into that, but I don't know until I hear you out.”13 The following colloquy ensued. 8 ----------------------------------------FOOTNOTE--------------------- 9 n.13 “THE COURT: Mr. Dickey, we don't constantly have Marsden hearings 10 during the course of a trial. We normally will hear a Marsden motion preceding the trial if the issue arises. And the trial is had, and if there's a subsequent—not 11 a Marsden motion—well, you could have a Marsden motion before sentencing if—once we get to that stage. But we don't do it in the middle of a trial. And we 12 still are—we're not through with your case, we still have the second part, the penalty phase, to get out of the way, if we get to that. I've been advised there are 13 some motions counsel want[s] to make before we get to the penalty phase. So I'll have to hear them out and determine whether or not this is a case where we 14 are going to get to the penalty phase. 15 “I'll hear whatever you have to say. I may have to tell you at the end of the statement that this is not the time to get into that, but I 16 don't know until I hear you out.” 17 ------------------------------------END FOOTNOTE------------------ 18

19 “THE DEFENDANT: Well, if this is not the time then this is not the time. “THE COURT: I can't tell. See, you apparently want to make some statements 20 concerning what you believe to be—I don't know, unwise choice[s] on the part of Mr. Schultz concerning calling witnesses, questions asked of them. I don't 21 know what you're getting to. That would be the sort of thing we'd want to hear after the trial is over with, and before sentencing. 22 “THE DEFENDANT: Yes, I'm not satisfied with the competency of my attorney. There are witnesses that are—that were available that [were] not called 23 that I feel [were] crucial to my defense, and issues that were not raised that I feel [were] crucial, and questions that [were] not asked of me while I was on the 24 stand that should have been raised. “THE COURT: That sounds like the sort of thing that you'd want to raise 25 after—before sentencing rather than at this time. “THE DEFENDANT: Okay, I'll leave that to your discretion, you know. 26 “THE COURT: From what you've just stated, that seems like the sort of thing you'd want to discuss then. 27 “THE DEFENDANT: There's other issues of motions for new trial other than that. But I don't believe this is the appropriate time. 28 61 “THE COURT: Once we get to the end of the trial, a transcript will be provided 1 to another attorney, to review the case and determine whether or not he feels there's grounds for new trial based on incompetency of counsel. We have to be 2 through with the trial. “THE DEFENDANT: Yes.” (Italics added.) 3 The court did appoint separate counsel, Katherine Hart, to assist defendant in 4 the preparation of a motion for a new trial. Ms. Hart's new trial motion, which was heard following the penalty phase of the trial, was based on the grounds, 5 among others, that (1) defendant's trial counsel, Mr. Schultz, was ineffective in the guilt phase, and (2) the court erred in failing to conduct a Marsden hearing 6 following the guilt phase. 7 The new trial motion was denied. As to defendant's Marsden claim, the court said, “I think at the time you were arguing this, that in my view there was a poor 8 choice of words on the Court's part. I know Mr. Schultz let me know that it was not strictly a Marsden motion, and then I started to talking about a Marsden 9 motion. And I do, of course, know the law, that you can have a Marsden motion at any stage of the proceedings. [¶] Mr. Dickey was not asking that the Court 10 have that Marsden hearing. He, of course, was dissatisfied with the results after the jury returned the verdict of guilty and found the special circumstances to be 11 true. [¶] So I do find that [the prosecutor] is absolutely correct, it was a poor choice of words on the Court's part, and there was no reason to have a Marsden 12 hearing at the time. It was not asked for.” 13 We conclude the court did not commit Marsden error. Although no formal motion is necessary, there must be “at least some clear indication by defendant 14 that he wants a substitute attorney. (People v. Mendoza (2000) 24 Cal. 4th 130, 157 [99 Cal.Rptr.2d 485, 6 P.3d 150], quoting People v. Lucky (1988) 45 Cal. 15 3d 259, 281, fn. 8 [247 Cal.Rptr. 1, 753 P.2d 1052].) (People v. Valdez (2004) 32 Cal. 4th 73, 97, 8 Cal.Rptr.3d 271, 82 P.3d 296.) Defendant did not clearly 16 indicate he wanted substitute counsel appointed for the penalty phase. To the extent he made his wishes known, he wanted to use counsel's assertedly 17 incompetent performance in the guilt phase as one of the bases of a motion for new trial, and he wanted to have separate counsel appointed to represent him in 18 the preparation of such a motion. As his expressed wishes were honored, he has no grounds for complaint now.14 19 20 ----------------------------------------FOOTNOTE--------------------- 21 n.14 Defendant contends his comments the following day, when he stated he did not wish to be present in the courtroom during the penalty phase, manifested an 22 irreconcilable conflict with counsel. We disagree. Defendant's remarks suggested he had lost confidence, not in counsel, but in the jury. “I would just as 23 soon that the defense not even say nothing, just rest. I don't intend to plead nothing to the jury. I'd just as soon sit in the cell. I have no intentions or desire 24 to try to have any sympathy or pity from the jury that convicted me of these crimes. I don't intend to be present, neither; I don't wish to be.” 25

26 ------------------------------------END FOOTNOTE------------------ 27 Moreover, it is clear a Marsden motion would have been baseless. 28 62 1 Again, in his colloquy with the court at the time he made the motion, defendant stated, “There are witnesses that are—that were available that [were] not called 2 that I feel [were] crucial to my defense, and issues that were not raised that I feel [were] crucial, and questions that [were] not asked of me while I was on the 3 stand that should have been raised.” 4 The one point in Ms. Hart's new trial motion that appears relevant to these complaints is her claim that Mr. Schultz failed to accede to defendant's request 5 that he present a defense of “third-party culpability,” i.e., that Gene Buchanan was “the real perpetrator.”15 Buchanan disappeared right after the crime, and 6 Buchanan's truck, which he owned with Gail Goldman, was abandoned. The truck was later located by the repossessor. After R.C. committed suicide, 7 Buchanan reappeared. Buchanan's disappearance was unusual, because Buchanan had lived with Goldman for five years, and during the time defendant 8 was residing with Goldman and Buchanan, Buchanan did not disappear for days at a time. Defendant's theory is that Buchanan was the real perpetrator, that 9 Buchanan had the same motive to commit the killing as the prosecution imputed to defendant (that is, a motive to rob or steal to obtain money for drugs), that 10 Buchanan disappeared right after the crime because he was guilty of the crime and wished to avoid detection, and reemerged once R.C.' s suicide was 11 publicized. 12 ----------------------------------------FOOTNOTE--------------------- 13 n.15 Whether defendant was claiming Buchanan was the lone killer or Cullumber's accomplice is not clear from Ms. Hart's moving papers. 14

15 ------------------------------------END FOOTNOTE------------------ 16 In a preface to this portion of her written motion, Ms. Hart stated, “Defendant 17 requests a separate hearing on this issue only if his motion for new trial on the basis of the actual record is denied. That is, there will be no need to conduct a 18 separate, detailed hearing on the issue of whether his defense was appropriately presented if his motion for new trial is granted on other grounds. Also, at the 19 time this motion was being prepared, defendant was still investigating facts supporting the claim of third-party culpability.... Defendant expects to present, 20 at the hearing on third-party culpability, declarations and witnesses not available for submission at the time this motion was filed.” 21 Ms. Hart was appointed on March 26, 1991. She filed the motion for new trial 22 almost five months later, on August 16, 1991. The hearing on the motion was held five months after that, on January 17, 1992. At the hearing, the court stated 23 it had been informed by Ms. Hart she was not abandoning the contention that Buchanan was the killer, but that she had nothing further to present to support 24 the theory. 25 In denying the new trial motion, the court observed there did not appear to have been “sufficient evidence available to Mr. Schultz to present a credible theory 26 that Mr. Buchanan would have been the person who went with RC that night and who was responsible for the killing. [¶] So I don't find that there was any 27 error on Mr. Schultz's part in failing to present this theory, and that it was not ineffective assistance of counsel to fail to do that.” 28 63 1 We do not find Marsden error where complaints of counsel's inadequacy involve tactical disagreements. (People v. Cole (2004) 33 Cal. 4th 1158, 1192, 2 17 Cal.Rptr.3d 532, 95 P.3d 811; People v. Welch (1999) 20 Cal. 4th 701, 728– 729, 85 Cal.Rptr.2d 203, 976 P.2d 754 (Welch ); People v. Barnett (1998) 17 3 Cal. 4th 1044, 1107, fn. 37, 74 Cal.Rptr.2d 121, 954 P.2d 384.) The conflict between defendant and counsel, over whether defendant's theory that Buchanan 4 was the real killer should have been presented to the jury, was a tactical disagreement, and in the apparent absence of any evidence supporting the 5 theory, a disagreement in which counsel seems to have taken the wiser view. 6 Dickey, 35 Cal. 4th 884, 917–22.

7 (1) No Irreconcilable Conflict Necessitating Substitute Counsel 8 Petitioner argues Schultz failed to fully apprise the trial court that a complete 9 breakdown in his relationship with Petitioner required substitute counsel. (Doc. No. 51-1, ¶

10 356.)

11 Petitioner points to his belief Schultz was incompetent (RT 5045-48); his refusal to 12 appear in court with Schultz as his attorney (RT 5100); and his waiver of personal presence at

13 the penalty trial and refusal to use a personal presence waiver form because it was prepared by

14 Schultz (RT 5114-15).

15 Petitioner argues the relationship breakdown was such that it was unlikely Schultz 16 could provide effective representation at the penalty phase and that Schultz was obligated to

17 withdraw. (Doc. No. 51-1 ¶¶ 359-62, citing California Rule of Professional Conduct 3-700

18 (C)(1)(d), (an attorney may withdraw from representing a client if the client “renders it

19 unreasonably difficult for the member to carry out the employment effectively.”).) 20 Marsden provides that the trial court has discretion to appoint substitute counsel if “the 21 defendant has shown that a failure to replace the appointed attorney would substantially impair

22 the right to assistance of counsel [citation], or, stated slightly differently, if the record shows

23 that the first appointed attorney is not providing adequate representation or that the defendant

24 and the attorney have become embroiled in such an irreconcilable conflict that ineffective

25 representation is likely to result.” People v. Smith, 6 Cal. 4th 684, 696 (1993) (citing People v.

26 Marsden, 2 Cal. 3d. 118 (1970)). 27 The state supreme court reasonably could find unpersuasive Petitioner’s arguments in 28 64 1 support of an irreconcilable conflict, as follows.

2 Petitioner Did Not Request Substitute Counsel under Marsden 3 The state supreme court reasonably could find Petitioner did not make a Marsden 4 request to the trial court. Petitioner argues his irreconcilable conflict was apparent in Schultz’s

5 mischaracterization of Petitioner’s desire for substitute counsel as a mere disagreement over

6 guilt phase tactics, allowing Schultz to avoid a Marsden proceeding. (See Doc. No. 142 at 49,

7 citing People v. Lucky, 45 Cal. 3d 259, 281 (1988) (“The mere fact that there appears to be a

8 difference of opinion between a defendant and his attorney over trial tactics does not place a

9 court under a duty to hold a Marsden hearing.”).

10 At the in limine hearing, Schultz told the trial court that “in terms of being able to 11 present [incompetency of counsel] as a motion for a new trial, it was my advice to [Petitioner]

12 that the request should be made to the court for an attorney to – a separate attorney to review

13 the record … to determine whether or not there is a legitimate basis or any basis for making a

14 motion for new trial based on incompetence of counsel.” (RT 5045-46.)

15 Schultz explained he requested the in limine hearing because “[he] was concerned 16 [Petitioner would raise] conversations that we had discussing the trial tactics and witnesses and

17 things might come up. And I thought it was – it’s not really a pure Marsden hearing, but there

18 are obvious disagreements as to tactics.” (RT 5046.)

19 Schultz contends he advised Petitioner on the procedure for a post-penalty phase new 20 trial motion because he believed Petitioner meant to raise incompetency of counsel issues. (RT

21 5047.)

22 The trial court acknowledged that the matter raised by Schultz “may be in the form of a 23 Marsden motion” and that Schultz “wanted to have [Petitioner] to have a chance to tell the

24 court as to his feelings.” (RT 5045.) The trial court left open the question whether Petitioner

25 might be seeking relief under Marsden. (RT 5047.)

26 The trial court then engaged Petitioner on the communication breakdown raised by 27 Schultz, telling Petitioner that: “I’ll hear whatever you have to say. I might have to tell you at

28 65 1 the end of your statement that this is not the time to get into that, but I don’t know until I hear

2 you out.” (RT 5047.)

3 Petitioner, during in limine colloquy agreed with the trial court that the issue he wanted 4 to raise involved guilt phase trial tactics, stating that:

5 [Y]es, I’m not satisfied with the competency of my attorney. There was 6 witnesses that are – that were available that was not called that I feel was crucial to my defense, and issues that were not raised that I feel was crucial, and 7 questions that was not asked of me while I was on the stand that should have been raised. 8

9 […] 10 [T]here’s other issues of motions for new trial other than that. But I don’t 11 believe this is the appropriate time. 12 (RT 5048.)

13 The trial court considered the matter and concluded that what Petitioner wanted was 14 substitute counsel on a new trial motion, stating that “[o]nce we get to the end of the trial, a

15 transcript will be provided to another attorney, to review the case and determine whether or not

16 he feels there’s grounds for a new trial based on incompetency of counsel. We have to be

17 through with the trial.” (RT 5048-49.) Petitioner responded “[y]es.”

18 The state supreme court reasonably could find the record to suggest that Petitioner took 19 issue with Schultz’s guilt phase decisions, rather than raising Marsden rights regarding 20 Schultz’s continued representation at the penalty phase. (See Doc. No. 142 at 51); cf. Schell,

21 218 F.3d at 1025 (“It is well established and clear that the Sixth Amendment requires on the

22 record an appropriate inquiry into the grounds for such a [Marsden] motion, and that the matter

23 be resolved on the merits before the case goes forward.”).

24 Subsequently, on reaching the motion for new trial, the trial court conceded that it 25 “used the wrong words” when telling Petitioner that “we don’t conduct Marsden hearing in the

26 middle of the trial.” (RT 5533.) Yet the trial court went on to confirm its belief that it did not 27 appear “[Petitioner] was really asking for a Marsden type hearing. (RT 5533); that although

28 66 1 that court “used the words Marsden hearing [ ] in truth it doesn’t appear [ ] that he was asking

2 for a Marsden hearing.” (Id.)

3 The state supreme court found as a matter of state law “[w]e do not find Marsden error 4 where complaints of counsel’s inadequacy involve tactical disagreements.” Dickey, 35 Cal. 4th

5 at 922. That court could reasonably find that Petitioner did not motion under Marsden for

6 substitute counsel, but rather sought substitute counsel for a new trial motion to be heard after

7 the penalty trial, such that Schultz’s failure to request a Marsden hearing was not deficient.

8 (Doc. No. 51-1 at ¶¶ 346-347, citing Schell, 218 F.3d at 1026; see also RT 5045-49, 5533; CT

9 571-576; Pet. Ex. 12 ¶ 12.)

10 Petitioner Was not Denied Effective Assistance of Counsel 11 The state supreme court could reasonably find the noted breakdown in relationship 12 between Schultz and Petitioner did not deny effective assistance of counsel. The record

13 suggests Schultz discussed Petitioner’s concerns over the guilt phase defense and advised him

14 as to redressing those concerns. Schultz told the trial court of Petitioner’s dissatisfaction with

15 the guilt phase defense and that he had advised Petitioner to seek substitute counsel on a new

16 trial motion. Schultz told the trial court that:

17 I didn’t anticipate having that motion heard before the second part of the trial. 18 Obviously, that’s up to the court. But that’s not the procedure that I explained to him. 19 20 (RT 5047.) Specifically, Schultz “explained to [Petitioner] the ground – the types of things

21 that could be presented to the court as part of a motion for a new trial when the time is

22 appropriate for that motion, and that there are some disagreements between [Petitioner] and I

23 as to some trial tactic decisions….” (RT 5045.) Notably, Schultz characterized the issues he

24 felt includable in a motion for new trial included “any issues of incompetency of counsel.”

25 (Id.). The Court observes these appear to be the same issues Petitioner raised during his

26 colloquy with the trial court. 27 Schultz confirmed in his habeas declaration the nature and extent of the breakdown in 28 67 1 his relationship with Petitioner; that it had its genesis in guilt phase tactics, stating that:

2 Following the guilt phase verdicts, there was a breakdown in the 3 communication between the [Petitioner] and myself. [Petitioner] advised me that he felt I had rendered ineffective assistance during the trial. Without being 4 specific, he told me that he disagreed with several of my tactics. He told me that he would no longer talk to me or participate in any proceedings at which I 5 was his attorney. He told me that he would not be attending the penalty phase of the proceedings. I informed the court that the defendant had questioned my 6 competency at an in limine hearing outside the presence of the prosecutor. I advised the judge that I felt that the complaints of [Petitioner] concerning 7 ineffectiveness were the proper subject of a motion for new trial following the penalty phase of the proceedings. I did tell the judge that the defendant had 8 advised me that he would no longer be talking to me, cooperating with me, or attending further proceedings in the trial. 9

10 (Pet. Ex. 12 ¶ 12.)

11 Still, the state supreme court reasonably could find Schultz continued to provide 12 effective assistance to Petitioner. The record reflects that Schultz continued to advise

13 Petitioner prior to the start of the penalty trial. Schultz was present when the trial court took

14 Petitioner’s oral waiver of personal presence. (RT 5102-03.) Subsequently, when it became

15 apparent state law required a written waiver and Petitioner refused Schultz’s proffered form

16 waiver, (RT 5114-15), Schultz nonetheless approved as defense counsel the written waiver

17 provided by the trial court and signed by Petitioner. (CT 475-476; see also Penal Code §

18 977(b)(2); RT 5116-20.) Schultz advised Petitioner regarding his stipulation to the prior

19 Nevada conviction charged in the information. (RT 5073-74.) Schultz also represented 20 Petitioner in court at the penalty trial in which Petitioner participated remotely. (RT 5124-41.)

21 Moreover, the state supreme court reasonably could find Petitioner’s absenting himself 22 from the penalty trial was not a manifestation of an irreconcilably broken relationship with

23 Schultz, but rather dissatisfaction at being convicted and disinclination to present any penalty

24 defense. (See claims III(B), VI and VII, post.) The state supreme court observed Petitioner’s

25 statement to the trial court that:

26 I would just as soon that the defense not even say nothing, just rest. I don't 27 intend to plead nothing to the jury. I'd just as soon sit in the cell. I have no intentions or desire to try to have any sympathy or pity from the jury that 28 68 convicted me of these crimes. I don't intend to be present, neither; I don't wish 1 to be. 2 Dickey, 35 Cal. 4th at 923; RT 5101-02.) Significantly, this statement is consistent with

3 Petitioner’s pre-trial defense interviews, wherein he stated that he was not interested in anyone

4 saving his life if a jury should be so stupid as to convict him. (Pet. Ex. 23 at SH002137.)

5 In this context, the state supreme court reasonably could find Schultz’s statement to the 6 trial court that he did not oppose the waiver of personal presence (RT 5100); that he had

7 “discussed it with [Petitioner] and I think that decision is his” and that “I was not going to

8 make a recommendation one way or the other” (id.) is not suggestive of a denial of assistance

9 of counsel. Especially so given that following his waiver of personal presence, Petitioner

10 nonetheless monitored proceedings from a holding cell and had ready access to the courtroom

11 and to Schultz. (See RT 5101; CT 475-476.)

12 Furthermore, Petitioner’s expressed distrust of Schultz and doubts as to Schultz’s 13 competency appear equivocal on the record. While Petitioner questioned guilt phase trial

14 tactics and refused to sign a form waiver of personal presence prepared by Schultz, he

15 nonetheless agreed to proceed to the penalty phase with Schultz as his attorney and accepted

16 representation thereat by Schultz. See Daniels, 428 F.3d at 1197 (citing Morris v. Slappy, 461

17 U.S. 1, 3-4 (1983)) (“[T]he right to counsel does not guarantee a right to counsel with whom

18 the accused has a ‘meaningful attorney-client relationship.”).

19 Petitioner has not demonstrated that he had any objection to Schultz’s penalty defense 20 or the penalty phase evidence or that he was denied opportunity to consult with Schultz

21 thereon. The penalty defense theory did not involve contesting the aggravating evidence

22 placed before the jury, i.e. the fact of Petitioner’s felony burglary conviction and the five

23 autopsy photographs. As noted, during pretrial interviews with the defense team, Petitioner

24 expressed his desire that facts underlying his burglary conviction be kept from the jury,

25 something the penalty defense accomplished.

26 Additionally, Petitioner participated in the penalty phase proceedings by audio and 27 video feed to his holding cell and had the option of returning to court and consulting Schultz at

28 69 1 any time. (RT 5101-02.) Significantly, Petitioner was not denied access to and advice from

2 Schultz. (See Lod. Doc. No. 8, Response to SHCP, at 123-26); see Morris, 461 U.S. at 13-14

3 (holding that the Sixth Amendment requires only competent representation and does not

4 guarantee a meaningful relationship between a defendant and counsel). As noted, Petitioner

5 allowed Schultz to continue advising and representing him up through sentencing.

6 ii. Prejudice 7 Petitioner argues Shultz’s allegedly deficient conduct denied him effective assistance of 8 counsel at the penalty phase and was presumptively prejudicial. (Doc. No. 51-1, ¶ 354, citing

9 Brown, 424 F.2d at 1170 (trial court’s failure to inquire into defendant’s dissatisfaction with

10 counsel and failure to communicate with counsel denied effective assistance of counsel).

11 Even if Schultz was deficient as alleged, Petitioner has failed to show prejudice, for the 12 reasons that follow.

13 (1) Presumed Prejudice 14 Petitioner argues he was constructively denied counsel at the penalty trial such that 15 prejudice can be presumed. (Doc. No. 51-1, ¶ 363, citing Roe v. Flores-Ortega, 528 U.S. 470,

16 483 (2000) (no specific showing of prejudice is required in instances where the reliability of

17 the judicial process itself is implicated such as the actual or constructive denial of the

18 assistance of counsel); United States v. Cronic, 466 U.S. 648, 658 (1984) (a presumption of

19 prejudice is warranted if the failures of counsel make the adversary process presumptively 20 unreliable); Holloway v. Arkansas, 435 U.S. 475, 485-86 (1978) (defendant has a constitutional

21 right not to be represented by an attorney with whom he has developed an irreconcilable

22 conflict); see also Doc. No. 142 at 52-53, citing Strickland, 466 U.S. at 692.)

23 Petitioner supports alleged denial of counsel by pointing out Schultz’s failure to: (i) 24 properly advise Petitioner regarding the waiver of presence at the penalty phase; (ii) develop

25 and present an adequate mitigation defense; and (iii) argue adequately at penalty phase closing.

26 (Doc. No. 51-1 ¶¶ 356-58, citing RT 5114-18; see also Doc. No. 142 at 52, citing RT 5134.) 27 Particularly, Petitioner argues that “he was not able to communicate with Schultz to formulate

28 70 1 a defense” and that “[a]s a result, no evidence was presented by [him] at the penalty phase, and

2 a death verdict was assured.” (Doc. No. 142 at 53.)

3 However, the state supreme court reasonably could find Petitioner was not 4 constructively denied counsel at the penalty phase entitling him to a presumption of prejudice,

5 for the reasons stated. See Perry, 488 U.S. at 278-79. That court reasonably could find

6 Petitioner did not seek substitute counsel for the penalty phase; acquiesced in Schultz’s

7 continuing as penalty phase counsel and retained access to those proceedings and to Schultz;

8 and participated in and did not object to the penalty defense and argument or demonstrate such

9 was constitutionally inadequate. As noted, on the eve of the penalty trial Petitioner stated his

10 desire that no mitigation defense be presented.

11 (2) Specific Prejudice 12 Alternatively, Petitioner alleges Schultz’s conflict adversely impacted the penalty phase 13 representation. To the extent the presumed prejudice standard does not apply, Petitioner must

14 meet the Strickland prejudice standard by establishing a reasonable probability that, but for

15 counsel’s deficient conduct, the result of the proceedings would have been different. See

16 Strickland, 466 U.S. at 694; see also Chaidez v. Knowles, 258 F. Supp. 2d 1069, 1082-83 (N.D.

17 Cal. 2003), aff’d, 111 F. App’x 899 (9th Cir. 2004) (Strickland applicable where no

18 constructive denial of assistance of counsel).

19 However, the state supreme court reasonably could find that Petitioner has not shown 20 Strickland prejudice arising from the penalty defense, for the same reasons discussed above

21 and summarized below. That court reasonably could find the totality of the proffered

22 mitigation evidence and that apparent in the record to be insubstantial and outweighed by the

23 aggravating and potential rebuttal evidence, such that there does not remain a reasonable

24 probability of a different outcome. (See the discussion of claims III(C-E) above.)

25 Additionally, Petitioner does not point to evidence in the record suggesting 26 disagreement or dissatisfaction with the penalty defense mounted at trial. Petitioner was on 27 record that he did not want to present any penalty defense to the jury that had just convicted

28 71 1 him. (RT 5101-02.) Petitioner has not demonstrated he was denied adequate consultation on

2 the penalty defense. See Lang, 725 F.Supp.2d at 1054 (adequate consultation between counsel

3 and client is an essential elements of competent representation). Similarly, he does not point to

4 facts suggesting he was unable to assist in his penalty defense. Id. Rather the record shows his

5 expressed desire not to present a penalty defense and not to be present in court during the

6 penalty defense. (RT 5101-02.)

7 Petitioner suggests that absent Schultz’s alleged deficient conduct, he would have 8 personally attended and participated in the penalty trial. However, Petitioner participated in

9 penalty phase proceedings remotely by audio and video feed and had access to Schultz who

10 continued to represent him during the penalty phase. See Sullivan, 446 U.S. at 346 (reasonably

11 appeared that counsel and defendant accepted any conflict by proceeding). He has not shown

12 on the factual record that in the course thereof he was denied the opportunity to assist counsel

13 in his defense or any particular input he was denied.

14 “It is not enough ‘to show that the errors had some conceivable effect on the outcome 15 of the proceeding.’” Richter, 562 U.S. at 104 (quoting Strickland, 466 U.S. at 693).

16 “Counsel’s errors must be ‘so serious as to deprive the defendant of a fair trial, a trial whose

17 result is reliable.’” Id. (quoting Strickland, 466 U.S. at 687). That is, only when “the

18 likelihood of a different result [is] substantial, not just conceivable,” has the petitioner met

19 Strickland’s demand that defense errors were “so serious as to deprive [him] of a fair trial.” Id. 20 at 104 (quoting Strickland, 466 U.S. at 687).

21 iii. Conclusions 22 A fair-minded jurist could find that Petitioner failed to establish counsel’s performance 23 fell below an objective standard of reasonableness and that absent counsel’s alleged

24 deficiencies, there remains a reasonable probability of a different outcome. Strickland, 466

26 Accordingly, the California Supreme Court’s rejection of this claim was not contrary 27 to, or an unreasonable application of, clearly established federal law, or an unreasonable

28 72 1 determination of the facts in light of the evidence presented in the state court proceeding. 28

3 Claim II(I) shall be denied. 4 4. Claim II(U) 5 Petitioner alleges counsel Schultz was ineffective by failing to accept the trial judge’s 6 offer to deliver an admonition to the jury regarding an outburst by the family of victim Marie

7 Caton, violating his rights under the Fifth, Sixth, Eighth and Fourteenth Amendments. (Doc.

8 No. 51-1 ¶¶ 409-414.)

9 a. Supplemental Legal Standards 10 “[I]f the State chooses to permit the admission of victim impact evidence and 11 prosecutorial argument on that subject, the Eighth Amendment erects no per se bar. A State

12 may legitimately conclude that evidence about the victim and about the impact of the murder

13 on the victim's family is relevant to the jury's decision as to whether or not the death penalty

14 should be imposed. There is no reason to treat such evidence differently than other relevant

15 evidence is treated.” Payne v. Tennessee, 501 U.S. 808, 827 (1991).

16 b. State Court Direct and Collateral Review 17 Petitioner presented claim II and all its subclaims in the second state exhaustion petition 18 (see Lod. Doc. No. 30 at 105-99) and it was summarily denied on the merits with certain

19 subclaims including subclaim U also denied on procedural grounds (Lod. Doc. No. 31, Order 20 Denying Cal. Pet., In re Colin Raker Dickey, No. S165302 (May 29, 2012)).

21 Petitioner also presented claim II(U) on direct appeal and it was denied on the merits. 22 Dickey, 35 Cal. 4th at 916-17.

23 c. Analysis 24 i. Deficient Performance 25 Petitioner argues that Schultz, following the trial court’s denial of his motion to 26 discharge the jury, failed to respond to the trial court’s offer of a special instruction 27 admonishing the jury to disregard the outburst and show of emotion in court by victim family

28 73 1 members. (See RT 5072-73.)

2 The record reflects that following reading of the guilt phase verdict on March 15, 1991, 3 Ms. Garratt, daughter of victim Marie Caton and mother of perpetrator R.C. (RT 4238, 4308),

4 exclaimed in open court “yes, yes” whereupon family members also reacted less emphatically

5 to the hoped-for verdict. (RT 5051.) The trial court immediately directed Ms. Garratt to “keep

6 it down, ma’am.” (RT 5053, 5051.) Prosecutor Hahus also told Ms. Garratt to “remain silent.”

7 (RT 5053.)

8 Schultz’s motion four days later to discharge the jury, on grounds the outburst was an 9 inflammatory and improper victim impact statement that biased the jury, was denied by the

10 trial court. (Doc. No. 51-1, ¶ 410; RT 5050; CT 470-71.) That court, while expressing regret

11 in not earlier instructing those in the courtroom not to display emotions during reading of the

12 guilt phase verdict (RT 5051), suggested “instruct[ing] the jury to disregard any display by any

13 spectators in the courtroom and any – the statement made by any spectator in the courtroom

14 when the verdicts were being read, unless the defendant does not want me to do that.” (RT

15 5072-73.) Schultz stated “[he would] have to make a decision on that.” (RT 5073.) 16 Ultimately, Schultz did not request the admonition and the trial court did not give it. (RT

17 5107-08.)

18 The California Supreme Court considered and denied the claim, stating that: 19 At the conclusion of the guilt phase of the trial, when the jury's verdicts and 20 findings were read in open court, Lavelle Garratt, the daughter of victim Marie Caton, said in a loud voice, “Yes, yes.” The court admonished her to “[k]eep it 21 down, ma'am”; and the prosecutor also loudly instructed her to remain silent. Other members of Mrs. Caton's family embraced one another, cried, and 22 whispered among themselves. 23 The following week defense counsel moved to discharge the jury on the ground it had been exposed to constitutionally impermissible victim impact evidence 24 under Booth v. Maryland (1987) 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440. In denying the motion, the court expressed doubt as to whether any prejudice 25 occurred, but offered to admonish the jury to disregard the outburst and not let it influence their penalty deliberations, unless the defense preferred that an 26 admonition not be given, as it might serve to highlight the incident in the minds of the jurors. Defense counsel said he would have to decide whether to ask for 27 such an admonition. As it turned out, no admonition was given. While the record does not reflect whether defense counsel expressly declined the court's 28 74 offer, it strongly suggests he did. The next day the court stated that “some 1 matters had been discussed in chambers and we've gone over” the penalty phase instructions. After the court listed the instructions it intended to give, it asked 2 whether either counsel wanted other instructions. Defense counsel stated, “I have no other requests.” Earlier, defense counsel had stated he felt no 3 admonition could be effective—that the proverbial bell could not be unrung. 4 Assuming arguendo an admonition would have cured any prejudice, defendant contends his trial counsel was ineffective in failing to request an admonition. 5 Again, we disagree. 6 The brief, spontaneous reaction of the members of Marie Caton's family to the jury verdicts did not constitute victim impact evidence of the sort proscribed in 7 Booth v. Maryland, supra, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440. Moreover, while this case has been on appeal, the United States Supreme Court, 8 partially overruling Booth and South Carolina v. Gathers (1989) 490 U.S. 805, 109 S.Ct. 2207, 104 L.Ed.2d 876, held that “[i]n a capital trial, evidence 9 showing the direct impact of the defendant's acts on the victims' friends and family is not barred by the Eighth or Fourteenth Amendments to the federal 10 Constitution. (Payne v. Tennessee (1991) 501 U.S. 808, 825–827 [111 S.Ct. 2597, 115 L.Ed.2d 720] [(Payne )].)” (People v. Pollock (2004) 32 Cal. 4th 11 1153, 1180, 13 Cal.Rptr.3d 34, 89 P.3d 353.) Payne applies retroactively. (People v. Clair (1992) 2 Cal. 4th 629, 672, 7 Cal.Rptr.2d 564, 828 P.2d 705 12 (Clair ).) 13 “Under California law, victim impact evidence is admissible at the penalty phase under section 190.3, factor (a), as a circumstance of the crime, provided 14 the evidence is not so inflammatory as to elicit from the jury an irrational or emotional response untethered to the facts of the case. (People v. Boyette, supra, 15 29 Cal. 4th at p. 444 [127 Cal.Rptr.2d 544, 58 P.3d 391]; People v. Edwards (1991) 54 Cal. 3d 787, 835–836 [1 Cal.Rptr.2d 696, 819 P.2d 436].)” (People v. 16 Pollock, supra, 32 Cal. 4th at p. 1180, 13 Cal.Rptr.3d 34, 89 P.3d 353.) It would come as no surprise to a jury that a victim's family was anguished by her 17 murder, relieved that part of the trial was over, and satisfied with the guilty verdicts. The relatively muted reaction of Marie Caton's family to the jury 18 verdicts was certainly not “so inflammatory as to elicit from the jury an irrational or emotional response untethered to the facts of the case.” (Ibid.) 19 Finally, defense counsel may have made a reasonable tactical decision that an admonition was not, on balance, desirable, because it would remind the jury of 20 the incident. 21

22 Dickey, 35 Cal. 4th at 916–17.

23 (1) Foregoing Admonition Was a Reasonable Trial Tactic 24 Petitioner argues Schultz’s failure to request an admonition left unmitigated the 25 extreme prejudice resulting from the outburst and left unpreserved the related due process and

26 cruel and unusual punishment violations. (Doc. No. 51-1, ¶ 411-13.) He suggests that for the 27 reasons asserted in claim II(I) above, Schultz had effectively abandoned him by the time the

28 75 1 trial court offered the admonition such that Schultz’s failure to respond was not tactical,

2 denying him an adequate penalty phase defense. (See Doc. No. 142 at 56-57; see also Pet. Ex.

3 12 at ¶ 12.)

4 However, Schultz expressly stated his tactical reasoning in his habeas declaration, that: 5 When the court agreed to provide an admonition to the jury on the outburst from 6 the family members following rendition of the guilty verdicts, my decision to forego such an admonition was a reasoned decision not to again ring the bell 7 regarding this emotional victim impact information. 8 (Pet. Ex. 12 ¶ 11.) This is consistent with Schultz’s statements during hearing on the motion to

9 discharge the jury prior to the penalty phase, that admonition would be ineffective; that the

10 outburst was “constitutionally impermissible information” and “there’s no way that they cannot

11 have that information at this point … you can’t unring the bell.” (RT 5052.) Schultz also

12 observed that four days had passed for the jury to think about the outburst. (RT 5062.)

13 Moreover, the trial court itself discussed the possibility of such a tactic. (RT 5066-67.)

14 The state supreme court reasonably could find the tactical underpinning was as stated 15 by Schultz. (See Pet. Ex. 12 at ¶ 11.) The admonition would have re-directed the jurors’

16 attention to an event that occurred days before. An event a reasonable juror might find

17 unremarkable, that a murder victim’s child might agree with a verdict for the prosecution.

18 People v. Pollock, 32 Cal. 4th 1153, 1180 (2004) (“[E]vidence showing the direct impact of

19 the defendant's acts on the victims' friends and family is not barred by the Eighth or Fourteenth 20 Amendments to the federal Constitution.”)

21 ii. Prejudice 22 Petitioner argues the outburst was highly inflammatory and necessarily considered by 23 the jury during their penalty deliberations. (Doc. No. 51-1, ¶ 409.) Particularly, he complains

24 he was unable to “confront [Ms. Garratt] as a witness or cross-examine her during the

25 coliseum-style proceedings.” (Doc. No. 142 at 57.)

26 However, the California Supreme Court reasonably could find the outburst not 27 prejudicial under Strickland. The jury was charged with considering in aggravation the facts

28 76 1 and circumstances of the capital crime which included guilt phase evidence relating to Ms.

2 Garratt’s discovery of her gravely injured mother; Ms. Garratt’s statements and testimony; and

3 Ms. Garratt’s offer of reward money. As the trial court observed, the jury might reasonably

4 consider the outburst a “natural display” of emotion by victim family members. (RT 5064.)

5 The outburst occurred after the jury had rendered all its guilty verdicts; consisted only 6 of the words “yes, yes” appearing in the record along with murmured sobbing reaction from

7 family members; and was condemned on the record by the trial court and the prosecutor. (See

8 RT 5057.) The state supreme court reasonably could have viewed any prejudice therefrom as

9 attenuated and quickly waning, distinguishable from the situation in Booth, relied upon by

10 Petitioner, where victim impact statements described family members opinions of the crimes

11 and petitioner and the severe emotional impact of the crimes. Booth v. Maryland, 482 U.S.

12 496, 498-99 (1987) overruled by Payne, 501 U.S. at 829.

13 Additionally, Petitioner argues but fails to demonstrate how the non-testimonial 14 outbursts, even if arguendo evidentiary in nature, could have been effectively confronted at the

15 penalty trial.8

16 Here, the jury presumably followed instruction that it consider only evidence presented 17 in court, as noted by the trial court in denying the motion. (CT 489; RT 5072.) The state

18 supreme court reasonably could find Petitioner failed to demonstrate otherwise.

19 iii. Conclusions 20 A fair-minded jurist could find that Petitioner failed to establish counsel’s performance 21 fell below an objective standard of reasonableness and that absent counsel’s alleged

22 deficiencies, there remains a reasonable probability of a different outcome. Strickland, 466

23 U.S. at 694.

24 Accordingly, the California Supreme Court’s rejection of this claim was not contrary 25 to, or an unreasonable application of, clearly established federal law, or an unreasonable

26 determination of the facts in light of the evidence presented in the state court proceeding. 28 27 8 The Court does not reach Respondent’s argument that Petitioner’s claim he was denied the opportunity to 28 confront the outburst is unexhausted (see Doc. No. 143 at 51 n.14) because the claim is denied on the merits. 77 1 U.S.C. § 2254(d).

2 Claim II(U) shall be denied. 3 5. Claim III(A) 4 Petitioner alleges that Schultz was ineffective by failing to make appropriate pre-trial 5 motions regarding the death penalty, violating his rights under the Fifth, Sixth, Eighth, and

6 Fourteenth Amendments. (Doc. No. 51-1, ¶¶ 421-27.)

7 a. Supplemental Legal Standards 8 During the sentence selection stage, the Supreme Court has imposed a requirement that 9 the jury make “an individualized determination on the basis of the character of the individual

10 and the circumstances of the crime.” Tuilaepa v. California, 512 U.S. 967, 972-73 (1994)

11 (citing Zant v. Stephens, 462 U.S. 862, 879 (1983)); see also Woodson v. North Carolina, 428

12 U.S. 280, 303-304 (1976)). This “requirement is met when the jury can consider relevant

13 mitigating evidence of the character and record of the defendant and the circumstances of the

14 crime.” Id. (citing Blystone v. Pennsylvania, 494 U.S. 299, 307 (1990)) (“[The] requirement of

15 individualized sentencing in capital cases is satisfied by allowing the jury to consider all

16 relevant mitigating evidence”).

17 The court may not “impede [] the sentencing jury’s ability to carry out its task of 18 considering all relevant facets of the character and record of the individual offender” by

19 excluding “relevant mitigating evidence.” Skipper v. South Carolina, 476 U.S. 1, 8 (1986). 20 Nevertheless, the court retains “the traditional authority of a court to exclude, as irrelevant,

21 evidence not bearing on the defendant’s character, prior record, or the circumstances of his

22 offense.” Lockett, 438 U.S. at 605 n.12.

23 b. State Court Direct and Collateral Review 24 Petitioner presented claim III including all subclaims in the second state exhaustion 25 petition (Lod. Doc. No. 30 at 200-302) and it was summarily denied on the merits with certain

26 subclaims including subclaim A denied on procedural grounds (Lod. Doc. No. 31, Order 27 Denying Cal. Pet., In re Colin Raker Dickey, No. S165302 (May 29, 2012)).

28 78 1 c. Analysis 2 i. Deficient Performance 3 Petitioner alleges that Schultz was deficient by failing to (i) object to pursuit of the 4 death penalty in this case on grounds California’s death penalty violates international law and

5 is arbitrary and capricious because it fails to narrow its reach and is disproportionate and

6 discriminatory; (ii) seek timely and full discovery of relevant evidence; and (iii) seek

7 admission of evidence of third-party culpability in support of mitigating lingering doubt and

8 evidence of involvement of another. (Doc. No. 142 at 59-60.)

9 The state supreme court reasonably could find the claim lacks internal factual support 10 and is reliant upon Petitioner’s “other penalty claims.” (Doc. No. 142 at 60.) Also, that court

11 reasonably could find the claim to be vague and conclusory on its face. See Campbell v. Wood,

12 18 F.3d 662, 679 (9th Cir. 1994) (citing Boehme v. Maxwell, 423 F.2d 1056, 1058 (9th Cir.

13 1970) (an evidentiary hearing is not required on allegations that are “conclusory and wholly

14 devoid of specifics)); see also Habeas Rule 2 (the petition must state the facts supporting each

15 ground). Particularly, the state supreme court reasonably could deny the claim, as follows.

16 (1) Reasonable Investigation, Development and Presentation of the Trial 17 Defense

18 This Court previously denied guilt phase claims II(B) and II(C) alleging ineffective 19 assistance in the investigation, development and presentation of the guilt phase defense 20 including as to exculpatory evidence, third-party culpability, expert opinion, and claim XXVI

21 alleging insufficiency of the prosecution’s guilt phase case. (See Doc. No. 135.) Petitioner’s

22 reargument of those claims is unpersuasive.

23 Additionally, the California Supreme Court reasonably could find Schultz was not 24 prejudicially deficient in the investigation, development and presentation of the mitigation

25 defense for the reasons stated above in the discussion of claims III(C-E).

26 (2) Schultz Was Not Unreasonable by Failing to Contest the Constitutionality 27 of California Death Penalty Statute

28 79 1 The California Supreme Court reasonably could have rejected Petitioner’s 2 constitutional challenges to California’s death penalty statute, for the reasons stated in the

3 discussion of claims XXV(A-L) below, summarized here.

4 Narrowing and Prosecutorial Charging Discretion 5 The California Supreme Court, on direct appeal stated that: 6 The death penalty law adequately narrows the class of death-eligible offenders. (People v. Brown (2004) 33 Cal. 4th 382, 401, 15 Cal.Rptr.3d 624, 93 P.3d 244 7 (Brown ); Prieto, supra, 30 Cal. 4th at p. 276, 133 Cal.Rptr.2d 18, 66 P.3d 1123.) 8

9 Dickey, 35 Cal. 4th at 931. That court was not unreasonable in finding the state’s death penalty

10 statute satisfies clearly established constitutional requirements. See Karis v. Calderon, 283

11 F.3d 1117, 1141 n.11 (2002) (California’s sentencing scheme adequately narrows the class of

12 persons eligible for death). First, the subclass of defendants eligible for the death penalty is

13 rationally narrowed to those who have the predicate felony of robbery. Tuilaepa, 512 U.S. at

14 969-73. The robbery special circumstance sufficiently guides the sentencer and is not

15 unconstitutionally vague. See Godfrey v. Georgia, 446 U.S. 420, 428 (1980) (the sentencer’s

16 discretion must be guided by “clear and objective standards.”).

17 In California v. Ramos, the United States Supreme Court stated that “once the jury 18 finds that the defendant falls within the legislatively defined category of persons eligible for

19 the death penalty” the jury’s consideration of a myriad of factors and exercise of “unbridled 20 discretion” in determining whether death is the appropriate punishment is not arbitrary and

21 capricious. 463 U.S. 992, 1008-09 (1983). At the selection stage, an individualized 22 determination includes consideration of the character and record of the defendant, the

23 circumstances of the crime, and an assessment of the defendant’s culpability. Tuilaepa, 512

24 U.S. at 972-73. However, the jury “need not be instructed how to weigh any particular fact in

25 the capital sentencing decision.” Id. at 979.

26 The California Supreme Court reasonably determined that California’s death penalty 27 scheme in effect in 1990 did not fail to genuinely narrow the class of murderers eligible for the

28 80 1 death penalty. California’s scheme, which narrows the class of death eligible offenders to less

2 than the definition of first-degree murder and permits consideration of all mitigating evidence,

3 has been approved by the Supreme Court, Tuilaepa, 512 U.S. at 972-79; Pulley v. Harris, 465

4 U.S. 37, 38 (1984).

5 California’s death penalty process does not fail to sufficiently narrow the class of 6 offenders who are eligible for death penalty and does not deny due process. Atkins v. Virginia,

7 536 U.S. 304, 319 (2002); Furman, 408 U.S. at 313 (White, J., concurring); see also Gregg v.

8 Georgia, 428 U.S. 153, 189 (1976) (plur. opn.) (“D]iscretion must be suitably directed and

9 limited so as to minimize the risk of wholly arbitrary and capricious action.”).

10 Furthermore, the mere existence of prosecutorial discretion over charging decisions 11 does not deny equal protection or render a capital punishment scheme unconstitutional absent

12 some showing that a particular decision was based on a discriminatory standard. McCleskey v.

13 Kemp, 481 U.S. 279, 306-07 (1987).

14 Sentencing Factors 15 California’s death penalty process is not unconstitutional on grounds it fails to require 16 the jury’s death determination and weighing of aggravating and mitigating factors be made

17 unanimously and beyond a reasonable doubt. “[A] capital sentencer need not be instructed

18 how to weigh any particular fact in the capital sentencing decision.” Tuilaepa, 512 U.S. at 979.

19 “Once the jury finds that the defendant falls within the legislatively defined category of 20 persons eligible for the death penalty . . . the jury then is free to consider a myriad of factors to

21 determine whether death is the appropriate punishment.” Id. (quoting Ramos, 463 U.S. at

22 1008).

23 The jury instructions were not erroneous because they: included inapplicable 24 sentencing factors; included vague terms and limiting mitigation terms such as “extreme” and

25 “substantial;” provided the existence of a special circumstance be considered an aggravating

26 circumstance; failed to identify which sentencing factors were aggravating and which were 27 mitigating; and failed to include any burden of proof at the penalty phase. See, e.g., Ayers v.

28 81 1 Belmontes, 549 U.S. 7, 24 (2006) (the jury heard mitigating evidence, the trial court directed

2 the jury to consider all the evidence presented, and the parties addressed the mitigating

3 evidence in their closing arguments); Brown, 544 U.S. at 133; Boyde, 494 U.S. at 370;

4 Dunckhurst v. Deeds, 859 F.2d 110, 114 (1988). The Eighth Amendment does not require that

5 a jury be instructed on particular statutory mitigating factors. Buchanan v. Amgelone., 522

6 U.S. 269, 275-77 (1998) (the state may shape and structure the jury's consideration of

7 mitigation so long as it does not preclude the jury from giving effect to any relevant mitigating

8 evidence). “[I]t must be recognized that the States may adopt capital sentencing processes that

9 rely upon the jury, in its sound judgment, to exercise wide discretion.” Tuilaepa, 512 U.S. at

10 974.

11 Particularly, the Supreme Court has stated that factor (k) directed the jury to consider 12 “any other circumstance that might excuse the crime. . . .” Boyde, 494 U.S. at 382; see also

13 Hendricks v. Vasquez, 974 F.2d 1099, 1109 (1992) (the jury was advised it could consider any

14 other mitigating matter).

15 Moreover, to the extent Petitioner raises only state law errors, he fails to state a basis 16 for federal habeas relief. 28 U.S.C. § 2254(a); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991)

17 (“[F]ederal habeas corpus relief does not lie for errors of state law.”). “In the absence of a

18 federal constitutional violation, no relief can be granted even if the instruction given might not

19 have been correct as a matter of state law.” Mitchell v. Goldsmith, 878 F.2d 319, 324 (1989). 20 International Law 21 Petitioner fails to point to clearly established Supreme Court precedent at the time his 22 conviction became final that capital punishment was illegal in this country based on

23 International Law. In Coleman v. Mitchell, 268 F.3d 417 (6th Cir. 2001), the Sixth Circuit

24 explained that “the claim that international law completely bars this nation’s use of the death

25 penalty is unsupportable since the United States is not party to any treaty that prohibits capital

26 punishment per se, and since total abolishment of capital punishment has not yet risen to the 27 level of customary international law.” Id., at 443 n.12; Medellin v. Dretke, 544 U.S. 660, 664

28 82 1 (2005) (Vienna Convention did not create individual judicially enforceable rights); see also

2 Sosa v. Alvarez-Machain, 542 U.S. 692, 734-35 (2004) (UN Charter, Universal Declaration of

3 Human Rights, and International Convention on Civil and Political Rights do not create

4 obligations enforceable in federal court); Jamison v. Collins, 100 F. Supp. 2d 647, 766 (2000)

5 (International Covenant on Civil and Political Rights is not self-executing); People v. Ghent,

6 43 Cal. 3d 739, 778-79 (1987) (United Nations charter does not supersede domestic

7 legislation); People v. Brown, 33 Cal. 4th 382, 404 (2004) (“International law does not prohibit

8 a sentence of death rendered in accordance with state and federal constitutional and statutory

9 requirements. [Citations.]”).

10 Furthermore, Petitioner lacks standing to invoke the jurisdiction of international law. 11 The principles of international law apply to disputes between sovereign governments and not

12 between individuals. Hanoch Tel-Oren v. Libyan Arab Republic, 517 F. Supp. 542, 545-47

13 (D.D.C. 1981).

14 Proportionality 15 The California Supreme Court reasonably could find Petitioner’s intra-case and inter- 16 case proportionality claims to be foreclosed by the Supreme Court’s decision in Pulley v.

17 Harris. See 465 U.S. at 41. Therein, the Supreme Court reviewed California’s death penalty

18 procedure and considered the fact that California did not require any sort of comparative

19 proportionality review. The Supreme Court found that the Eighth Amendment did not require 20 a “state appellate court, before it affirms a death sentence, to compare the sentence in the case

21 before it with the penalties imposed in similar cases if requested to do so by the prisoner.”

22 Pulley, 465 U.S. at 43-44.

23 The Supreme Court also held that “on its face, [California’s] system, without any 24 requirement or practice of comparative proportionality review, cannot be successfully

25 challenged under Furman v. Georgia, [408 U.S. 238 (1972)] and our subsequent cases.”

26 Pulley, 465 U.S. at 53. The Supreme Court considered and upheld California’s scheme where 27 “a person convicted of first-degree murder is sentenced to life imprisonment unless one or

28 83 1 more special circumstances are found, in which case the punishment is either death or life

2 imprisonment without parole”, Pulley, 465 U.S. at 51; “the judge is required to state on the

3 record the reasons for his findings [denying a] motion for modification [of the verdict]”, id. at

4 53; and “there is an automatic appeal [from denial of a motion for modification]”, id. at 53.

5 Appellate Review 6 Written findings by the jury regarding the death penalty are not required by the United 7 States Constitution. Walton v. Arizona, 497 U.S. 639, 647-48 (1990), rev’d on other grounds,

8 Ring v. Arizona, 536 U.S. 584, 589 (2002)); see also Williams, 52 F.3d, at 1484-85. Especially

9 so as “the United States Supreme Court has never stated that a beyond-a-reasonable-doubt

10 standard is required when determining whether a death penalty should be imposed.” Harris,

11 692 F.2d at 1195.

12 Rather, all that is federally required is an “adequate basis for appellate review.” Id. In 13 California, the trial court’s express reasons for its findings in ruling on the automatic motion

14 for modification provide the “adequate basis” for appellate review. Id.; see also People v.

15 Diaz, 3 Cal. 4th 495, 571-573 (1992). The California Supreme Court reasonably could find the

16 record in this case is sufficient for appellate review under this standard.

17 ii. Prejudice 18 The state supreme court reasonably could find Petitioner failed to show Strickland 19 prejudice. Petitioner supports the claim by citing to “other penalty claims.” (Doc. No. 142 at 20 60.) Yet his various constitutional challenges to California’s death penalty statute fail for the

21 reasons stated in the discussion below of claims XXV(A-L).

22 The California Supreme Court reasonably could find that absent counsel’s alleged 23 deficiencies, there does not remain a reasonable probability of a different outcome. Strickland,

24 466 U.S. at 694; see also Apelt, 878 F.3d at 815-16 (denying habeas relief even though trial

25 counsel failed to uncover mitigating evidence that the defendant grew up very poor, had an

26 alcoholic and violent father who beat his children with an iron rod, was raped twice as a child, 27 and suffered from mental illness); Cain, 870 F.3d at 1021 (denying habeas relief despite new

28 84 1 mitigating evidence that the defendant was severely beaten and punished by his stepmother,

2 had an untreated childhood head injury, and had learning disabilities). The assertion of these

3 unmeritorious constitutional challenges would not have increased the probability of a more

4 favorable sentencing determination. Moreover, “[t]he mere criticism of trial tactics is

5 insufficient to establish ineffectiveness or prejudice.” Ferreira-Alameda, 815 F.2d at 1254.

6 iii. Conclusions 7 A fair-minded jurist could find that Petitioner failed to establish counsel’s performance 8 fell below an objective standard of reasonableness and that absent counsel’s alleged

9 deficiencies, there remains a reasonable probability of a different outcome. Strickland, 466

10 U.S. at 694.

11 Accordingly, the California Supreme Court’s rejection of this claim was not contrary 12 to, or an unreasonable application of, clearly established federal law, or an unreasonable

13 determination of the facts in light of the evidence presented in the state court proceeding. 28

14 U.S.C. § 2254(d).

15 Claim III(A) shall be denied. 16 6. Claim III(B) 17 Petitioner alleges that Schultz was ineffective by failing to investigate and declare a 18 doubt as to Petitioner’s competency at the penalty trial and during his waiver of personal

19 presence thereat, violating his rights under Fifth, Sixth, Eighth, and Fourteenth Amendments. 20 (Doc. No. 51-1, ¶¶ 428-32.)

21 a. Supplemental Legal Standards 22 “A criminal defendant may not be tried unless he is competent.” Pate v. Robinson, 383 23 U.S. 375, 378 (1966); accord Medina v. California, 505 U.S. 437, 439 (1992). He may not

24 waive his right to counsel or plead guilty unless he does so “competently and intelligently[.]”

25 Johnson v. Zerbst, 304 U.S. 458, 468 (1938); see also Godinez v. Moran, 509 U.S. 389, 396

26 (1993) (same). 27 The trial or conviction of a person who is legally incompetent is a substantive due 28 85 1 process violation. Cooper v. Oklahoma, 517 U.S. 348, 354 (1996); see also Maxwell v. Roe,

2 606 F.3d 561, 568 (9th Cir. 2010) (quoting Robinson, 383 U.S. at 378) (“It is undisputed that

3 ‘the conviction of an accused person while he is legally incompetent violates due process.’”).

4 “[T]he standard for competence to stand trial is whether a defendant has sufficient 5 present ability to consult with his lawyer with a reasonable degree of rational understanding

6 and has a rational as well as factual understanding of the proceedings against him.” Moran,

7 509 U.S. at 396 (citing Dusky v. United States, 362 U.S. 402, 402 (1960)); see also Clark v.

8 Arnold, 769 F.3d 711, 729 (9th Cir. 2014). Mental competence requires only that a criminal

9 defendant “has the capacity to understand the proceedings and to assist counsel.” Moran, 509

10 U.S. at 402. “It has long been accepted that a person whose mental condition is such that he

11 lacks the capacity to understand the nature and object of the proceedings against him, to

12 consult with counsel, and to assist in preparing his defense may not be subjected to a trial.”

13 Anderson v. Gipson, 902 F.3d 1126, 1133 (2018) (citing Drope v. Missouri, 420 U.S. 162, 171

14 (1975)). Factors relevant to the competency determination include courtroom demeanor, prior

15 irrational behavior, and mental health history. Drope, 420 U.S. at 180.

16 A “substantive” competency claim focuses on whether the defendant was actually 17 incompetent at trial. Boyde, 404 F.3d at 1165. “Even where the evidence before the trial judge

18 was insufficient to raise a good faith doubt with respect to Steinsvik's competency, he would

19 still be entitled to relief if it now appears that he was in fact incompetent.” Steinsvik v. Vinzant, 20 640 F.2d 949, 954 (9th Cir. 1981) (citing Zapata v. Estelle, 588 F.2d 1017, 1021 (5th Cir.

21 1979)).

22 Petitioner bears the burden of proof by a preponderance of the evidence. Hayes v. 23 Woodford, 301 F.3d 1054, 1078 at n.28 (9th Cir. 2002) (citing Simmon v. Blodgett, 110 F.3d

24 39, 41 (9th Cir. 1997)) (rehearing en banc Hayes v. Brown, 399 F.3d 972 (9th Cir. 2005))

25 (panel decision reversed on other grounds).

26 Trial incompetency, if demonstrated, is structural error not amenable to harmless error 27 analysis under Brecht, but rather necessitating automatic reversal. United States v. Walters,

28 86 1 309 F.3d 589, 593 (9th Cir. 2002) (quoting Neder v. United States, 527 U.S. 1, 7 (1999)).

2 b. State Court Direct and Collateral Review 3 Petitioner presented claim III including all subclaims in the second state exhaustion 4 petition (Lod. Doc. No. 30 at 200-302) and it was summarily denied on the merits with certain

5 subclaims including subclaim B denied on procedural grounds (Lod. Doc. No. 31, Order

6 Denying Cal. Pet., In re Colin Raker Dickey, No. S165302 (May 29, 2012)).

7 The California Supreme Court on direct appeal also considered and denied on the 8 merits Petitioner’s claim his absence from the penalty phase proceedings violated his

9 constitutional rights. Dickey, 35 Cal. 4th at 922-24.

10 c. Analysis 11 i. Deficient Performance 12 Petitioner alleges that Schultz was deficient by failing to declare a doubt as to his 13 competence. (Doc. No. 142 at 61-63; see also the discussion of claim II(I) above and claims

14 VI and VII below.)

15 Petitioner faults Schultz for not investigating competency and requesting a Penal Code 16 section 1368 et seq. hearing to present the habeas proffered evidence that Petitioner’s organic

17 brain damage, PTSD, mental illness, depression, and chronic substance abuse must have left

18 him incompetent by the start of the penalty trial. (Doc. No. 51-1 ¶¶ 428-429; Doc. No. 142 at

19 61-63.) He argues that he was unable to competently assist in the penalty defense and validly 20 waive presence at the penalty trial. (Id.) He argues his incompetence was readily apparent in

21 the noted breakdown in his relationship with Schultz. (Id.; see also the discussion of claim

22 II(I) above and claims VI and VII below.)

23 The California Supreme Court rejected on direct appeal Petitioner’s claim that his 24 absence from the penalty trial violated federal rights, stating that:

25 At his request and pursuant to his written waiver, defendant absented himself 26 from the courtroom during the penalty phase of the trial and observed the proceedings on a television monitor in the holding cell. Defendant now 27 contends his absence violated the federal Constitution and sections 977 and 1043. We conclude defendant validly waived his constitutional right to be 28 87 present, and although sections 977 and 1043 were violated, the error was 1 harmless under People v. Watson (1956) 46 Cal. 2d 818, 836, 299 P.2d 243. 2 Before the penalty phase began, defense counsel informed the court defendant did not wish to be in the courtroom during the proceeding. Counsel advised the 3 court he had discussed the issue with defendant, and that he did not oppose defendant's wishes in this regard. He observed, “with the video setup that's 4 available in the holding area, obviously there's no confrontation issue.” 5 The court confirmed “we have a holding cell right next to this courtroom, we have a TV monitor in there ... so that you will both be able to see and hear what 6 is going on in this courtroom.” While stating he was prepared to comply with defendant's wish to be absent, the court advised defendant “it would probably be 7 wiser to be in the courtroom during the taking of the testimony,” and if defendant changed his mind at any time, “we'll bring you back immediately.” 8 Defendant responded, “I would just as soon that the defense not even say 9 nothing, just rest. I don't intend to plead nothing to the jury. I'd just as soon sit in the cell. I have no intentions or desire to try to have any sympathy or pity from 10 the jury that convicted me of these crimes. I don't intend to be present, neither; I don't wish to be.” 11 Having readvised defendant of his confrontation and cross-examination rights, 12 the court took an oral waiver in which defendant confirmed he understood his right to be present, that he was voluntarily asking to absent himself, and that he 13 understood he could return to the courtroom “anytime you want to come back.” The oral waiver was confirmed in a written waiver signed in open court after 14 defendant himself actively participated in its wording. 15 A defendant has the right, under the Sixth Amendment of the federal Constitution, to be present at trial during the taking of evidence. Nonetheless, as 16 a matter of both federal and state constitutional law, a capital defendant may validly waive his presence at critical stages of the trial. (People v. Weaver 17 (2001) 26 Cal. 4th 876, 966, 111 Cal.Rptr.2d 2, 29 P.3d 103 (Weaver ); People v. Jackson (1996) 13 Cal. 4th 1164, 1209–1210, 56 Cal.Rptr.2d 49, 920 P.2d 18 1254 (Jackson ).) Defendant's waiver was valid; accordingly, his constitutional rights were not violated. 19 A capital defendant cannot voluntarily waive his rights under sections 977 and 20 1043 to be present at trial. (Weaver, supra, 26 Cal. 4th at pp. 967–968, 111 Cal.Rptr.2d 2, 29 P.3d 103; Jackson, supra, 13 Cal. 4th at p. 1210, 56 21 Cal.Rptr.2d 49, 920 P.2d 1254.) However, permitting defendant to waive those rights was merely statutory error, and thus we should reverse the judgment on 22 this ground only if we conclude the error was prejudicial. (Weaver, at p. 968, 111 Cal.Rptr.2d 2, 29 P.3d 103; Jackson, at p. 1211, 920 P.2d 1254.) The 23 standard for reviewing error in permitting a defendant to absent himself from the penalty phase of a capital case is whether there is a “ ‘reasonable possibility 24 ’ ” the jury would have reached a different result had the error not occurred. (People v. Hernandez (2003) 30 Cal. 4th 835, 877, 134 Cal.Rptr.2d 602, 69 P.3d 25 446, italics added; People v. Brown (1988) 46 Cal. 3d 432, 448, 250 Cal.Rptr. 604, 758 P.2d 1135.) Weaver and Jackson were also capital cases, and we used 26 the reasonable probability standard in those cases. (Weaver, at p. 968, 111 Cal.Rptr.2d 2, 29 P.3d 103; Jackson, at p. 1211, 56 Cal.Rptr.2d 49, 920 P.2d 27 1254.) However, the error in Weaver occurred in the sanity phase of the trial (Weaver, at p. 965, 111 Cal.Rptr.2d 2, 29 P.3d 103), and in the guilt phase in 28 88 Jackson (Jackson, at p. 1209, 56 Cal.Rptr.2d 49, 920 P.2d 1254). 1 We conclude it is not reasonably possible a result more favorable to defendant 2 would have been reached in the absence of the error. First, the television monitor in the holding room enabled defendant to see and hear the proceedings, 3 and the court made it clear defendant would be brought back into the courtroom the moment defendant decided he wanted to return. Second, the only witness 4 who testified during the penalty phase was the detective who provided the foundation for the admission of the autopsy photographs of the victims. The 5 admissibility of the autopsy photographs had already been vigorously contested by defense counsel, and it is not apparent what value defendant's presence 6 during the detective's testimony would have been to defense counsel. (See Weaver, supra, 26 Cal. 4th at p. 968, 111 Cal.Rptr.2d 2, 29 P.3d 103.) Third, 7 given defendant's professed lack of any desire to receive “sympathy or pity from that jury that convicted me of these crimes,” his demeanor, had he been present 8 in the courtroom, might have undermined his counsel's argument. Finally, the court advised the jury that defendant had exercised his option of not being 9 present, but that he was following the proceedings on a television screen in the holding cell, and that they were not to consider his absence in their 10 deliberations. 11 Dickey, 35 Cal. 4th 884, 922–24.

12 (1) No Reasonable Doubt as to Petitioner’s Competency 13 Petitioner argues his “serious organic brain damage, PTSD, chronic underlying mental 14 illness, depression and chronic substance abuse and dependency,” considered in the context of

15 the stress of trial and the breakdown in his relationship with Schultz, were sufficient to raise a

16 reasonable doubt as to his competency. (Doc. No. 51-1 ¶¶ 428-29; see also Doc. No. 142 at

17 61; discussion of claim II(I)) above and claims VI and VII below.)

18 Petitioner argues these illnesses and impairments prevented him from (i) rationally 19 assisting counsel, and (ii) making any knowing, intelligent and voluntary waiver of his right to 20 be present during the penalty trial. (Doc. No. 51-1 at ¶¶ 430-31, citing Miranda v. Arizona,

21 384 U.S. 436, 444-445 (1996) (waiver of constitutional rights is valid only if knowing,

22 intelligent and voluntary, and the person making the waiver is competent to do so); Withrow v.

23 Williams, 507 U.S. 680, 688-89 (1993) (validity of waiver turns on the totality of the

24 circumstances). He argues Schultz’s failure to raise a doubt as to his competency was 25 unreasonable and not motived by trial tactics. (Doc. No. 51-1, ¶ 432.)

26 However, the state supreme court reasonably could find Petitioner’s ability to 27 understand the proceedings against him, assist counsel, and waive constitutional rights were

28 89 1 not reasonably in doubt, as follows. See Moran, 509 U.S. at 402.

2 The Defense Investigation 3 Petitioner’s argument that Schultz did not reasonably investigate his mental state and 4 thereupon declare a doubt as to his trial competency (see Doc. No. 51-1 ¶ 428) fails for the

5 reasons discussed in claims III(C-E) above. Although the defense investigation revealed

6 Petitioner’s possible personality and psychosexual disorders, his drug use history, and criminal

7 history which included juvenile acts of sexual molestation and an act of necrophilia for which

8 he was charged and convicted as adult, (see Pet. Ex. 23 at SH002051-2137), the investigation

9 did not reasonably suggest Petitioner was unable to rationally understand and assist in his

10 defense. Notably, Petitioner expressed concern over the impact the admission of his criminal

11 history might have on the jury. He unilaterally suggested a change of venue strategy in this

12 regard. (Pet. Ex. 23 at SH002091-94.)

13 Furthermore, Petitioner’s undiscounted psychosocial history does not suggest he was 14 ever diagnosed or found incompetent, or that his competency had been or reasonably could

15 have been placed in doubt. The defense investigation as detailed to Schultz did not uncover

16 facts suggesting Petitioner’s abusive and dysfunctional upbringing left him, by the time of the

17 penalty phase, unable to understand proceedings in court and assist with his defense. (See

18 section VII, A, 2, c, ante.) Notably, during pretrial defense interviews with Petitioner’s

19 mother, she described his level of functionality in terms not suggesting incompetency, as 20 follows:

21 Petitioner was health growing up with no unusual diseases or medical problems; he was sometimes hyperactive and developed a nervous twitch around age 9 or 22 10 years; 23 Petitioner’s family life included physical abuse, particularly, the father beat Petitioner severely, but also included family vacations to places such as 24 Disneyland and the San Diego Zoo; 25 Petitioner’s parents drank and used drugs, passed bad checks, were sometimes without housing arrangements, living with relatives or others, the father had 26 difficultly holding a job due to his drinking, at times the father was in jail or otherwise absent from the home, and the family lived on welfare; 27 Petitioner and his siblings witnessed and were victims of violence in the home; 28 90 1 The mother started working in fast food, became heavily addicted to drugs and engaged in sexual liaisons and severe beatings of the children including 2 Petitioner; 3 The father engaged in sexual misconduct with relatives including the repeated rape of the mother’s 13-year-old sister while the children including Petitioner 4 watched; 5 Petitioner sometimes acted strangely, abusing his younger brother; 6 Petitioner sexually molested his younger sister. 7 (Pet. Ex. 23 at SH002040-49.)

8 Guilt phase psychiatrist Dr. Hackett did not opine Petitioner was incompetent. Guilt 9 phase psychologist Dr. Thompson, while acknowledging a possible character disorder, found

10 no basis for a psychiatric defense. As this Court previously observed in its order denying guilt

11 phase claims:

12 Petitioner was interviewed in jail by Dr. Hackett, ((Doc. No. 51-1 ¶ 523; 13 SSHCP, Ex. 2 at 119-120), who diagnosed him with antisocial personality disorder but nonetheless found him competent to assist in his defense (id.). 14 Petitioner also was evaluated by Dr. Thompson (id. at 114), who found 15 petitioner mildly depressed (SSHCP, Ex. 2 at 121-23; id. at Ex. 19), but showing no obvious symptoms of psychosis either manifest or latent. (SSHCP, 16 Ex. 2 at 122). Dr. Thompson opined that a psychiatric defense would be of no value (id.). 17

18 (Doc. No. 135 at 45.)

19 The state supreme court reasonably could find Schultz, given the facts and 20 circumstances he faced, was entitled to rely upon these experts that a competency defense was

21 not in play.9 Babbitt v. Calderon, 151 F.3d 1170, 1174 (1998) (counsel has no duty to contact

22 other experts when he reasonably thought those consulted were well-qualified and no duty to

23 ensure the trustworthiness of an expert’s conclusions); see also Murtishaw v. Woodford, 255

24 F.3d 926, 947-48 (9th Cir. 2001) (based on information from experts including that petitioner’s

25 EEG was within normal limits, counsel reasonably could have concluded that further

26 investigation of his possible brain damage was unwarranted); Ortiz v. Stewart, 149 F.3d 923, 27 9 The record reflects Thompson may have practiced marriage family, or child counseling on a revoked state 28 license. (See Pet. Ex. 23 at SH002297-98.) 91 1 933 (9th Cir. 1998), overruled on other grounds by Apelt, 878 F.3d at 827-28 (alleged lack of

2 preparation for sentencing in capital case failed prejudice prong where petitioner failed to show

3 how insufficient preparation prejudiced him).

4 Similarly, Dr. Callahan, mental health expert on the new trial motion, aware of 5 Petitioner’s “extremely chaotic…highly stressful…abusive” background and its possible

6 impact upon his necrophilia, diagnosed Petitioner only with a “passive inadequate” and

7 “avoidant” personality and did not suggest Petitioner was incompetent. (RT 5461-83.)

8 For the reasons stated, Schultz reasonably could have decided the defense investigation 9 did not suggest a reasonable doubt as to competency and that further mental state investigation

10 as to penalty phase competency was not warranted. See Ake v. Oklahoma, 470 U.S. 68, 83-84

11 (1985) (in capital sentencing proceeding, due process requires access to psychiatric

12 examination on relevant issues, testimony of psychiatrist, and assistance in preparation at

13 sentencing phase).

14 Demeanor at Trial 15 Petitioner argues his conduct following the guilty verdict reasonably placed his 16 competency in doubt. He points to the breakdown in his relationship with Schultz and refusal

17 to personally be present at the penalty trial. (Doc. No. 51-1 ¶ 428.)

18 However, Schultz, prior to and during the trial proceedings, was able to observe 19 Petitioner’s demeanor in court and while testifying. He had first-hand information as to 20 Petitioner’s ability to understand proceedings in court and assist with the defense. Petitioner

21 has not shown that Schultz at any time questioned Petitioner’s competency to rationally

22 understand and assist with his trial and defense. (See Pet. Ex. 12; see also discussion of claim

23 II(I) above.)

24 Trial counsel’s assessment of a defendant’s competency is significant and relevant 25 evidence. See Hernandez v. Ylst, 930 F.2d 714, 718 (9th Cir. 1990); Williams v. Woodford,

26 384 F.3d 567, 606 (9th Cir. 2004). Especially so where there is not uncontradicted evidence of 27 a history of pronounced irrational behavior. See Robinson, 383 U.S. at 384-86; Odle v.

28 92 1 Woodford, 238 F.3d 1084, 1088 (9th Cir. 2001); cf. de Kaplany v. Enomoto, 540 F.2d 975,

2 979 (9th Cir. 1976) (“[O]rientation as to time and place and some recollection of events is not

3 enough [to show trial competence].”)

4 Petitioner’s guilt phase testimony reflected an understanding of the proceedings in court 5 and ability to assist and further the defense theory, recollection of events perceived, and an

6 understanding he was under oath at trial. (See RT 4869-85, 4900-27.) Moreover, he was able

7 to rationally discuss with Schultz and the trial court his issues with Schultz’s guilt phase

8 performance and desire to absent himself from the courtroom during penalty proceedings. The

9 noted record suggests that Petitioner exhibited a “sufficient present ability to consult with his

10 lawyer with a reasonable degree of rational understanding” and “a rational as well as factual

11 understanding of the proceedings against him.” Moran, 509 U.S. at 396.

12 As discussed above, the state supreme court reasonably could find Petitioner’s decision 13 to discontinue communication with Schultz and absent himself from the courtroom during

14 penalty phase proceedings suggested his dissatisfaction with guilt phase tactics and verdicts

15 rather than incompetency. Particularly, Petitioner’s colloquy with the trial court regarding

16 such matters and his detailed requests for limiting language in the written waiver of personal

17 presence reasonably suggest he understand the nature and purpose of the penalty phase and that

18 he did not wish to mount and assist in a penalty defense. Petitioner has not demonstrated on

19 the record that his decisions in these regards were indicative of or attributable to incompetence. 20 Furthermore, the trial court did not suggest Petitioner’s conduct during trial raised 21 doubt as to his competency. To the contrary, that court observed during post-trial motions that

22 Petitioner “has been an absolutely model defendant. Not once did he get out of hand, even in

23 the slightest.” (RT February 21, 1992 at 50.)

24 Defense Habeas Experts 25 Petitioner argues his habeas experts raised a reasonable doubt as to his competency at 26 the time of the penalty trial. 27 As noted, Dr. Khazanov found that Petitioner demonstrated multiple indicia of brain 28 93 1 damage and impairment particularly in the frontal lobe variously suggesting impulse control

2 and aggression issues. (Doc. No. 142 at 106; see also Pet. Ex. 2 at 19-20, 31, 220-21; id., Ex. 2

3 at Ex. H at 7, 65.) Particularly, Dr. Khazanov observed Petitioner to suffer PTSD, depression,

4 physically and emotionally self-destructive behaviors, and organic brain damage including

5 frontal lobe deficits relevant in mitigation. (Pet. Ex. 2 at Ex. H at 25.)

6 Dr. Khazanov opined Petitioner’s serious organic brain damage and underlying mental 7 impairments left him unable to respond rationally to situations facing him, especially so when

8 combined with substance abuse. (Pet. Ex. 2 at Ex. H at 23.) She opined Petitioner’s brain

9 damage was present at the time of trial (id.) and would have been evident to a

10 neuropsychologist had one then been retained (id. at 24).

11 Dr. Khazanov further opined that decompensation from Petitioner’s organic brain 12 damage and mental illnesses “contributed directly to [his] incompetency to proceed at the

13 penalty phase of the trial [and that he] was unable to assist his counsel in a rational manner in

14 the presentation and defense of the penalty phase of the trial” (id.) including as to the

15 breakdown in communication with Schultz and the waiver the presence in the courtroom (id.).

16 Dr. Khazanov based her findings on “possible” deficits which “could” affect 17 Petitioner’s capacity to perceive and relate information and when combined with Petitioner’s

18 other conditions or impairments “would most likely render [him] severely impaired in many

19 areas of functioning.” (Pet. Ex. 2 at Ex. H at 2.) She found that “[Petitioner’s] ability to 20 accurately perceive, retain and relate even basic information is severely impaired.” (Pet. Ex. 2

21 at Ex. H at 23.)

22 Dr. Khazanov went on to opine that: 23 Given his history of victimization, the combined stress of protracted legal 24 proceedings, as well as the courtroom setting itself, could have produced further mental decompensation. In particular, [Petitioner’s] organic brain damage and 25 underlying mental illnesses contributed directly to his incompetency to proceed at the penalty phase of the trial. [Petitioner] was unable to assist his counsel in 26 a rational manner in the presentation and defense of the penalty phase of the trial. [Petitioner’s] mental illnesses and brain impairments directly impacted his 27 decisions to absent himself and to discontinue communicating with his defense counsel and his ability to assist in his defense in any way. 28 94 1 (Id. at 24.)

2 However, the state supreme court reasonably could find Dr. Khazanov’s opinions 3 subject to discount. She examined Petitioner fourteen years after trial. Her findings appear

4 unsupported in Petitioner’s prior mental health history and contravene the opinions of the

5 mental health professionals who actually examined Petitioner at the time of trial and the

6 demeanor evidence from Petitioner’s conduct prior to and during trial. Significantly, Schultz

7 did not find Petitioner’s behavior and demeanor to raise question as to his competency; nor did

8 the trial court.

9 Moreover, Dr. Khazanov’s conclusions were conclusory and equivocal. She stated that 10 “while it is difficult to ascertain [Petitioner’s] mental status at the time of trial in 1991,

11 combined disabilities identified by my assessment suggest that the possibility exists that his

12 ability to assist his attorney in conducting his defense was hindered.” (Id., emphasis added.)

13 See Leavitt v. Arave, 646 F.3d 605, 614 (9th Cir. 2011) (holding, in pre-AEDPA case, that

14 mental health opinions that “couch results in tentative language” are “simply not enough to

15 show prejudice”).

16 Furthermore, to the extent Petitioner relies upon Dr. Counter, the psychologist who 17 prepared a habeas psychosocial history for Petitioner (see Pet. Ex. 2), Dr. Counter seems to

18 have assembled the noted opinions of others without herself opining on Petitioner’s mental

19 state at the time of trial. See Runningeagle v. Ryan, 825 F.3d 970, 987 (9th Cir. 2016) 20 (discounting mental health declaration that “gave no affirmative diagnosis”). Apart from Dr.

21 Khazanov, none of the sources cited by Dr. Counter seem to opine upon Petitioner’s

22 incompetency at the time of trial. Dr. Counter did not herself opine on Petitioner’s

23 incompetency. (Id.)

24 Petitioner’s statements to Dr. Counter during their 2007 interview suggest he was 25 oriented and well able to articulate his thoughts. For example, he told Dr. Counter that the

26 abuse he suffered at home “annihilated my self-esteem” such that “I didn’t interact normally. I 27 was so afraid to express myself. I had this mortal fear to interact with people. Social

28 95 1 anxiety…I couldn’t act in a normal way…The beatings, I could have gotten past that. But the

2 emotional beatings were the worst.” (Pet. Ex. 2 at 54.) The state supreme court reasonably

3 could find such retrospection not indicative of incompetency.

4 Dr. Counter observed that Petitioner sometimes struggled in school. (See Pet. Ex. 2 at 5 52, 78; Pet. Ex. 23 at SH002065, SH002085.) Yet the record suggests some level of academic

6 achievement. In June of 1983 at age 18, Petitioner graduated from Tulare Union High School

7 182nd in a class of 291. (Pet. Ex. 2 at 95.) While in prison in Nevada, Petitioner was able to

8 successfully program. (Pet. Ex. 2 at 101.) Upon release, Petitioner successfully completed

9 truck driving school at the top of his class. (Id. at 103.) He also was able to maintain

10 employment in an auto parts store and in the roofing trade. (Id. at 105.)

11 The habeas proffered institutional mental state experts did not find Petitioner 12 incompetent upon his arrival on death row following the capital conviction. In 1992, Petitioner

13 was examined by San Quentin staff psychologist Dr. M. Lyons, who observed “no signs or

14 symptoms of psychosis, organicity or serious psychological impairment in social functioning.”

15 Dr. Lyons observed that “[Petitioner’s] cognitive functions were adequately developed, and [ ]

16 his level of conceptual thinking and reasoning was adequate for the formation of good

17 judgment.” (Pet. Ex. 2 at 128; id., Ex. 23 at SH002798.) Subsequent examinations by prison

18 mental health professionals concluded Petitioner presented “no psych considerations.” (Id. at

19 129; see also Pet. Ex. 23 at SH003128-29.) Thereafter, Petitioner was able to successfully 20 navigate death row administrative procedures and adjust to institutional life. (Pet. Ex. 2 at 136-

21 45.)

22 ii. Prejudice 23 Petitioner argues that absent Schultz’s deficient conduct, there is a reasonable 24 probability he would not have been subject to penalty phase proceedings while incompetent,

25 not personally present, and unable to assist counsel, and thereby avoided a death sentence.

26 (Doc. No. 51-1, ¶ 432, citing Deere v. Woodford, 339 F.3d 1084, 1086 (9th Cir. 2003) 27 (remanding capital habeas case for evidentiary hearing on competence where petitioner

28 96 1 presented expert testimony in habeas that his “multiple impairments, exacerbated by pressures

2 from his former girlfriend and the conditions of his confinement [at the time of his arrest],

3 rendered him incompetent to rationally comprehend his trial proceedings or to aid and assist

4 counsel.”).) Particularly, Petitioner suggests his absence from the penalty phase was taken by

5 jurors as a sign of disinterest and lack of remorse. (Doc. No. 51-1 at ¶ 430.)

6 However, the state supreme court reasonably could find Petitioner failed to demonstrate 7 on the factual record that he was incompetent at the time of the penalty trial, for the reasons

8 stated. Based thereon, that court reasonably could find no structural error and conclude there

9 was no reasonable probability of a more favorable sentencing outcome.

10 Moreover, Petitioner has not demonstrated his absence from the penalty trial impacted 11 the fullness of his mitigation defense. (See the discussion of claims VI and VII, below.)

12 Petitioner was on record as not wanting to present any mitigation defense. (Id.)

13 Additionally, the jury was specifically instructed that “you are not to consider for any 14 purpose, the reason that [Petitioner] is not here. He’s free to make the election that he has

15 made and you’re not to, in any way at all, use it in your decision-making in this phase of the

16 case.” (RT 5124.) The state supreme court reasonably could find the jury understood and

17 followed that instruction. Weeks v. Angelone, 528 U.S. 225, 234 (2000).

18 iii. Conclusions 19 A fair-minded jurist could find that Petitioner failed to establish counsel’s performance 20 fell below an objective standard of reasonableness and that absent counsel’s alleged

21 deficiencies, there remains a reasonable probability of a different outcome. Strickland, 466

22 U.S. at 694.

23 Accordingly, the California Supreme Court’s rejection of this claim was not contrary 24 to, or an unreasonable application of, clearly established federal law, or an unreasonable

25 determination of the facts in light of the evidence presented in the state court proceeding. 28

26 U.S.C. § 2254(d). 27 Claim III(B) shall be denied. 28 97 1 7. Claim III(F) 2 Petitioner alleges that Schultz was ineffective by presenting an incompetent penalty 3 phase closing argument, violating his rights under the Fifth, Sixth, Eighth and Fourteenth

4 Amendments. (Doc. No. 51-1 ¶¶ 569-603.)

5 a. Supplemental Legal Standards 6 “There can be no doubt that closing argument for the defense is a basic element of the 7 adversary factfinding process in a criminal trial.” Herring v. New York, 422 U.S. 853, 858

8 (1975).

9 b. State Court Direct and Collateral Review 10 Petitioner presented claim III including all subclaims in the second state exhaustion 11 petition (Lod. Doc. No. 30 at 200-302) and it was summarily denied on the merits (Lod. Doc.

12 No. 31, Order Denying Cal. Pet., In re Colin Raker Dickey, No. S165302 (May 29, 2012)).

13 Petitioner also claimed on direct appeal that counsel was ineffective based upon the 14 brevity of the penalty phase closing argument; the California Supreme Court denied the claim.

15 Dickey, 35 Cal. 4 th at 927.

16 c. Analysis 17 i. Deficient Performance 18 Petitioner argues Schultz’s five-minute closing argument was incomprehensible, 19 ineffective, and entirely unsupported by any evidence at the penalty phase. (Id.; see also Doc. 20 No. 142 at 144-45.) He characterizes Schultz’s closing summation, which comprised two and

21 one-half pages of transcript, as “incomprehensible . . . [and] marred by erroneous statements of

22 fact and law.” (Doc. No. 51-1, ¶ 569.)

23 According to Petitioner, Schutz unreasonably failed to: discuss the law on mitigation; 24 present any evidence in mitigation; argue mitigating effect of the guilt phase evidence;

25 investigate and address the aggravating evidence consisting of Petitioner’s prior felony

26 conviction for second degree burglary and the autopsy photographs of the slain victims (see RT 27 5127-31); and argue lingering doubt. (Doc. No. 51-1 ¶573; Doc. No. 142 at 140; see also RT

28 98 1 5127-31; CT 479.)

2 Particularly, Petitioner argues Schultz omitted important facts and misstated and failed 3 to state the important aspects of the instructions the jury would be given to weigh the

4 aggravating and mitigating factors. He argues Schultz improperly conceded the absence of

5 mitigation. (See Doc. No. 51-1 ¶¶ 575-78.) He argues Schultz failed to argue available

6 mitigating facts under CALJIC 8.85 including: (i) his role in the murders was as a mere

7 accomplice and aider and abettor (Pen. Code § 190.3 (a); see also RT 5135-36); (ii) his prior

8 conviction for non-residential burglary was a non-violent felony (Pen. Code § 190.3 (c)); (iii)

9 his relatively young age (26 years) at the time of the capital crime (Pen. Code § 190.3 (i)); his

10 minor role in what he believed was to be only a robbery (Pen. Code § 190.3 (j)); and his

11 impairment by substance abuse at the time of the capital crime and remorse after the crime

12 (Pen. Code § 190.3 (k)).

13 The record shows that Schultz’s penalty phase closing argument in its entirety was as 14 follows:

15 Colin will die in prison. You vote to kill him or he will just never get out. The 16 trial was conducted on an aider and abettor theory. The prosecutor told you in his first argument the statement of Colin was, “while we were there R.C. flipped 17 out and killed two people; what should I do, should I roll over on R.C.?” 18 You were told that the -- in order to find a special circumstance that the death had to be in the course of a robbery and not incidental to it, somebody just shot 19 somebody because that's what they wanted to do, intentionally walked up to somebody and shot them, they would look at 25 to life with the possibility of 20 parole. On a felony murder where the intent was to steal and R.C. flipped out, we get into the two most severe and treacherous penalties the law allows. Life 21 without the possibility of parole is not leniency, is not condoning conduct; it's not ignoring the conscious [sic] of the community. 22 And you are not the conscience of the community. You are 12 separate people. 23 And each of you has to pull the switch. You can't pass the buck to anybody else. You can't say, “Take a poll.” 24 The absence of any mitigating factor on that chart is not an aggravating factor. 25 The law does not require you to vote for death. The instruction will be that the aggravating factors must substantially -- substantially outweigh the mitigating 26 factors and then -- and then you still have to decide between life and death. There is nothing that tells you that law favors death. If the factors were equal, it 27 would be life. If the factor -- if mitigating outweighs the aggravating, it's life. 28 99 We're all subject to human frailty, anything -- anything in the back of your mind 1 during the guilt phase that wasn't sufficient to amount to a reasonable doubt, any lingering thought you have is sufficient for mitigation. 2 If you accept Gene and Gail then you have to accept the remorse. 3 Three people are dead. This crime could never have occurred without R.C. 4 Nobody knew where the money was, nobody knew how to get in to [sic] the house, nobody had the other information, nobody could get over there without 5 R.C.; it couldn't have occurred. Three people are dead, the State says, “Make it four and that's appropriate, if we get four dead that's appropriate.” The option is 6 the second most severe penalty the law allows. He'll never get out. It means what it says. 7 The second opportunity that Mr. Hahus had to talk to you, he said that Colin 8 was shook, he was upset; a robbery had been planned, nothing but a burglary -- of the home for cash and he ended up riding a murder beef. R.C. told Colin 9 about his grandmother's house; the money was in the house, they'd go over there and take it and the burglary went sideways. 10 They refer to you -- whether or not -- in number [“e”] whether or not the victim 11 participated in the defendant's homicidal act or consented. Well, obviously that's not true, there is no concept that it is true. But the only theory that was 12 presented in the prosecution was an aider and abettor, that the homicidal act was done by R.C. He referred to the defendant's act. 13 The appropriateness of the penalty -- in terms of worst cases or better cases or 14 more serious cases or more aggravated cases -- there's one burglary, that's it, that's it, and they want him to die, they want you to kill him. They point to a 15 burglary in 1983 and say, “He didn't learn.” 16 You're going to teach him by killing him? Is death really going to solve this? The punishment boggles the mind, never getting out of prison, never. Is one 17 more death the solution? Thank you. 18 (RT 5138-40.)

19 The California Supreme Court, in denying claimed ineffectiveness of counsel arising 20 from the brevity of the closing argument stated that:

21 Defendant next contends defense counsel was ineffective because his penalty 22 phase argument was brief. It was brief; in transcript, three pages long. (The prosecutor's argument was longer by only a page.) However, the effectiveness 23 of an advocate's oral presentation is difficult to judge accurately from a written transcript, and the length of an argument is not a sound measure of its quality. 24 (Weaver, supra, 26 Cal. 4th at p. 979, 111 Cal.Rptr.2d 2, 29 P.3d 103; People v. Cudjo (1993) 6 Cal. 4th 585, 634–635, 25 Cal.Rptr.2d 390, 863 P.2d 635.) 25 Defense counsel argued the trial was conducted on an aider and abettor theory; 26 that Richard Cullumber was the actual killer; that defendant had expressed remorse as he told his story to Goldman and Buchanan; that the prosecutor in 27 argument had acknowledged only a burglary had been planned; that life imprisonment without possibility of parole meant that defendant would never 28 100 get out of prison; that sending another man to his death was not an appropriate 1 response to this tragedy; that sentencing defendant to life imprisonment without possibility of parole was the second most severe penalty the law allowed and 2 would not serve to condone defendant's crime; that the aggravating factors had to substantially outweigh the mitigating factors to warrant the death penalty; and 3 that any lingering doubt the jurors may have had during the guilt phase, even though not amounting to a reasonable doubt, was sufficient for mitigation. 4 We conclude defense counsel's argument, though brief, did not fall below the 5 standard of reasonably competent representation, and we find no reasonable probability that a different argument would have convinced the jury to vote for 6 life over death. (Weaver, supra, 26 Cal. 4th at p. 979, 111 Cal.Rptr.2d 2, 29 P.3d 103; People v. Lewis (2001) 25 Cal. 4th 610, 675, 106 Cal.Rptr.2d 629, 22 7 P.3d 392 [penalty phase argument two pages in length not inadequate representation]; Mayfield, supra, 5 Cal. 4th at pp. 186–187, 19 Cal.Rptr.2d 836, 8 852 P.2d 331 [brief, “perfunctory” penalty phase argument not inadequate representation].) 9

10 Dickey, 35 Cal. 4th at 927.

11 The state supreme court reasonably denied the claim, as discussed below. 12 (1) The Penalty Defense and Trial Tactics 13 Mitigating Evidence and Sentencing Factors 14 Petitioner faults Schultz for failing to argue the mitigating value of guilt phase evidence 15 (see Doc. No. 51-1, ¶¶ 569-603; see also CT 498-499) and the habeas proffered mitigation

16 evidence. (Doc. No. 51-1 ¶¶ 579, 592, citing CALJIC 8.84, 8.85.) He argues Schultz lacked

17 any strategic basis for his failure to do so.

18 However, the state supreme court reasonably could find Schultz’s closing touched upon 19 evidence in the record supporting the primary penalty defense theory that Petitioner played 20 only a minor role in the theft portion of the crime; that he did not intend to harm anyone and

21 did not do so. (See RT 5138.)

22 Schultz alluded to the mitigating aspects of lingering doubt as to Petitioner’s 23 involvement in the crime; that he was a mere aider and abettor of a planned burglary gone

24 wrong; that R.C. was the principal in the crime and killed both victims. (RT 5139-40.)

25 Moreover, the jury knew the prosecutor conceded the absence of direct evidence that Petitioner

26 aided the killings or formed an intent to kill before seeing victim Freiri apparently dead. (See 27 RT 4975-80.)

28 101 1 Schultz argued Petitioner’s confession to his roommates, apparently accepted by the 2 jury, suggested remorse by his emotional recounting of the crime and questioning whether to

3 turn himself in to authorities. (RT 4357-62, 5139; see also Doc. No. 51-1, ¶¶ 579, 590-597;

4 Doc. No. 142 at 148; Doc. No. 135 regarding guilt phase claims (II(B-C, L).) He argued

5 Petitioner’s involvement in the crime was not highly aggravated on its facts, highlighting for

6 the jury the severity of the felony murder rule. (RT 5138.) He argued the 1983 burglary

7 conviction lacked aggravating weight. (RT 5140.) He argued that life without the possibility

8 of parole (hereinafter “LWOP”) was a proportionate and appropriate punishment and that

9 Petitioner would never be released from prison if sentenced to LWOP. (RT 5138-39.)

10 As to the brevity of the defense closing, Schultz stated on habeas his reasoning that “a 11 very concise statement to the jury would have the most positive effect.” (Pet. Ex. 12 ¶ 14.)

12 He averred that “I emphasized the defendant’s limited role as aide and abettor to the underlying

13 felonies and his insubstantial criminal history. My final argument lasted for approximately

14 five minutes.” (Id.) The state supreme court reasonably could according strategic weight to

15 Schultz’s reasoning.

16 Petitioner’s Other Arguments 17 Petitioner’s additional arguments that Schultz was deficient in his penalty phase closing 18 reasonably appear unpersuasive. Schultz did not concede “an absence of any mitigating

19 factor.” Instead, Schultz argued that “t]he absence of any mitigating factor on that [Penal Code 20 section 190.3] chart [of sentencing factors discussed by the prosecutor] was not an aggravating

21 factor.” (RT 5139.) The state supreme court reasonably could find this to be a correct

22 statement of the law and not a concession that the evidence before the jury had no mitigating

23 weight. Petitioner argument otherwise based upon a passage lifted out of context is at best

24 unpersuasive. (See e.g. Doc. No. 144 at 30-31.)

25 The state supreme court could reasonably find Schultz was not deficient by failing to 26 argue each of the CALJIC 8.85 factors in mitigation. Any failure by Schultz to link the 27 CALJIC 8.85 sentencing factors to mitigating aspects of the trial record was ameliorated by

28 102 1 jurors’ awareness of these factors from the prosecutor’s earlier penalty phase closing argument

2 and the illustrative chart in the courtroom. (See RT 5134-38; CT 498-499 (regarding CALJIC

3 8.85).) Schultz told the jury that “the aggravating factors must substantially outweigh the

4 mitigating factors.” (RT 5139.) The jury specifically was instructed on the Penal Code section

5 190.3 sentencing factors. (CT 498-503.) Jurors are presumed to understand the court’s

6 instructions and follow them. Weeks, 528 U.S. at 234.

7 Moreover, the jury was aware Petitioner had no prior history of violent crime; the 8 prosecutor conceded as much. (RT 5134.) The jury knew Petitioner was only 26 years-of-age

9 at the time of the crime; the prosecutor had stated as much. (RT 4871.) The jury knew that

10 “[Petitioner was young” when the capital crime occurred (RT 5136).

11 Petitioner has not pointed to facts in the record that he was under the influence of drugs 12 at the time of the capital crimes.

13 For the reasons stated, the state supreme court reasonably could find Schultz argued the 14 mitigating evidence and factors and discounted the aggravating evidence and factors consistent

15 with the trial defense theory and the possibility of lingering doubt and his reasonable trial

16 strategy of keeping Petitioner’s criminal history from the penalty phase jury. See Gentry, 540

17 U.S. at 4 (deference accorded to counsel’s decisions in closing argument).

18 ii. Prejudice 19 Petitioner argues that absent Schultz’s deficient conduct there is a reasonable 20 probability the result of the sentencing trial would have been different. (Doc. No. 51-1 ¶ 603.)

21 However, the state supreme court reasonably could find otherwise. The jury was 22 instructed that argument is not evidence (RT 5146; CT 488). They were adequately instructed

23 at the penalty phase (see discussion of claims III(G) and XII(D-H) below), including

24 instruction that they could consider evidence from the entire trial unless instructed otherwise.

25 (RT 5145.) For the reasons stated, Petitioner has not shown on the factual record that the jury

26 was precluded from considering any and all mitigating evidence. (See the discussion of claim 27 III(A) above and claim III(G) below); see also Lockett, 438 U.S. at 604.

28 103 1 iii. Conclusions 2 A fair-minded jurist could find Petitioner failed to establish that counsel’s performance 3 fell below an objective standard of reasonableness, and that absent counsel’s alleged

4 deficiencies there remains a reasonable probability of a different outcome. Strickland, 466

5 U.S. at 694.

6 Accordingly, the California Supreme Court’s rejection of this claim was not contrary 7 to, or an unreasonable application of, clearly established federal law, or an unreasonable

8 determination of the facts in light of the evidence presented in the state court proceeding. 28

9 U.S.C. § 2254(d).

10 Claim III((F) shall be denied. 11 8. Claim III(G) 12 Petitioner alleges that Schultz was ineffective by failing to object to inappropriate 13 penalty phase instructions and request appropriate penalty phase instructions, denying him a

14 fair and reliable sentence determination, violating his rights under the Fifth, Sixth, Eighth and

15 Fourteenth Amendments.10 (Doc. No. 51-1, ¶¶ 604-616.)

16 a. Supplemental Legal Standards 17 The Constitution requires that the jury must “not be precluded from considering, as a 18 mitigating factor, any aspect of a defendant’s character or record and any of the circumstances

19 of the offense that the defendant proffers as a basis for a sentence less than death.” Lockett, 20 438 U.S. at 604.

21 Any error in the state court’s determination of whether state law supported an 22 instruction in this case cannot form the basis for federal habeas relief. See McGuire, 502 U.S.

23 at 71 (“[T]he Due Process Clause does not permit the federal courts to engage in a finely tuned

24 review of the wisdom of state evidentiary rules”). “Failure to give [a jury] instruction which

25 might be proper as a matter of state law, by itself, does not merit federal habeas relief.”

26 Menendez v. Terhune, 422 F.3d 1012, 1029 (9th Cir. 2005), quoting Miller v. Stagner, 757 27 10 Claim III(G) does not include argument that counsel failed to object to penalty phase instructions. (See Doc. 28 No. 51-1 ¶¶ 604-614.) 104 1 F.2d 988, 993 (9th Cir. 1985).

2 The Supreme Court has stated instead that a claim that a court violated a petitioner’s 3 due process rights by omitting an instruction requires a showing that the error “so infected the

4 entire trial that the resulting conviction violate[d] due process.” Henderson v. Kibbe, 431 U.S.

5 145, 154 (1977). The burden on petitioner is especially heavy “where ... the alleged error

6 involves the failure to give an instruction.” Clark v. Brown, 450 F.3d 898, 904 (9th Cir. 2006).

7 Even if constitutional instructional error has occurred, the federal court must still 8 determine whether petitioner suffered actual prejudice, that is, whether the error “had

9 substantial and injurious effect or influence in determining the jury’s verdict.” Brecht, 507

10 U.S. at 637. A “substantial and injurious effect” means a “reasonable probability” that the jury

11 would have arrived at a different verdict had the instruction been given. Clark, 450 F.3d at

12 916.

13 In evaluating a claim of instructional error, a single instruction is not viewed in 14 isolation, but rather in the context of the overall charge. Spivey v. Rocha, 194 F.3d 971, 976

15 (1999). “[T]he proper inquiry . . . is whether there is a reasonable likelihood that the jury has

16 applied the challenged instruction” in an unconstitutional manner. Boyde, 494 U.S. at 380.

17 Additionally, a reviewing court does not engage in a technical parsing of the 18 instruction’s language, but instead approaches the instructions in the same way that the jury

19 would -- with a “commonsense understanding of the instructions in the light of all that has 20 taken place at the trial.” Johnson v. Texas, 509 U.S. 350, 368 (1993). Lastly, federal courts

21 presume that juries follow instructions, including cautionary instructions. Weeks, 528 U.S. at

22 234; see also Boyde, 494 U.S. at 381-85; Tan v. Runnels, 413 F.3d 1101, 1115 (2005).

23 b. State Court Direct and Collateral Review 24 Petitioner presented claim III including all subclaims in the second state exhaustion 25 petition (Lod. Doc. No. 30 at 200-302) and it was summarily denied on the merits with certain

26 subclaims including subclaim G denied on procedural grounds (Lod. Doc. No. 31, Order 27 Denying Cal. Pet., In re Colin Raker Dickey, No. S165302 (May 29, 2012)).

28 105 1 c. Analysis 2 i. Deficient Performance 3 Petitioner faults counsel for failing to prepare and request special case law-based 4 instructions appropriate for his penalty defense. (See Doc. No. 142 at 159-60.)

5 However, Petitioner does not point to any clearly established Supreme Court law as a 6 basis for relief. See Blystone, 494 U.S. at 305 (it is sufficient that “jury be allowed to consider

7 and give effect to all relevant mitigating evidence”); id. at 308 (no general Eighth Amendment

8 requirement for a mercy instruction); Brown, 479 U.S. at 543 (instructing the jury that they

9 cannot consider mere sympathy for the defendant at penalty determination does not violate the

10 United States Constitution).

11 Petitioner’s specific arguments, discussed below, were reasonably rejected by the state 12 supreme court.

13 (1) Lingering Doubt 14 Petitioner argues Schultz failed to request instruction that the jury may consider 15 lingering doubt. (See RT 5107-08.) Petitioner argues that under California law lingering doubt

16 can be a factor in mitigation such that an instruction on lingering doubt would have been

17 available to highlight an important mitigation factor. (See Doc. No. 51-1, ¶¶ 606-08, citing

18 People v. Kaurish, 52 Cal. 3d 648, 705 (1990) (trial court instructed jury that it could consider

19 lingering doubt of defendant's guilt to be a factor in mitigation); see also Doc. No. 144 at 32, 20 citing People v. Terry, 61 Cal. 2d 137, 145 (1964) (“[T]he lingering doubts of jurors in the

21 guilt phase may well cast their shadows into the penalty phase and in some measure affect the

22 nature of the punishment.”), overruled on other grounds by People v. Laino, 32 Cal. 4 th 878,

23 893 (2004).) Petitioner argues the standard instructions given by the trial court “did not

24 provide adequate guidance on this mitigation factor.” (Doc. No. 144 at 34.)

25 However, Petitioner has not pointed to clearly established law that a trial court is 26 required to instruct a jury to consider lingering doubt as a mitigating factor. The California 27 Supreme Court has found no such requirement. See People v. Jackson, 1 Cal. 5th 269, 369-70

28 106 1 (2016) (neither state nor federal law requires a trial court to instruct a penalty jury to consider

2 lingering doubt as a factor in mitigation).

3 The record shows the jury was instructed to consider “all of the evidence received 4 during any part of the trial in this case,” and “[w]hether or not the defendant was an

5 accomplice to the offense and his participation in the commission of the offenses was relatively

6 minor” and “[a]ny other circumstance which extenuates the gravity of the crime even though it

7 is not a legal excuse for the crime [. . . . ]” (CT at 498-499.)

8 Additionally, Schultz argued for lingering doubt, that: 9 We're all subject to human frailty, anything -- anything in the back of your mind 10 during the guilt phase that wasn't sufficient to amount to a reasonable doubt, any lingering thought you have is sufficient for mitigation. 11

12 (RT 5139.)

13 Accordingly, the state supreme court reasonably could have found the instructions 14 given and the arguments of counsel relative thereto sufficiently covered these areas raised by

15 Petitioner.

16 (2) Sympathetic Evidence 17 Petitioner argues Schultz failed to request instruction regarding the propriety of 18 considering sympathy. (Doc. No. 142 at 164, citing RT 5108.) He points out the jury was

19 instructed at the guilt phase not to be influence by sympathy or pity (CT 388) and argues no 20 contrary instruction was given at the penalty phase. (Doc. No. 142 at 162.) He argues the jury

21 was entitled to consider sympathy. (See Doc. No. 142 citing Lockett v. Ohio, 438 U.S. 586

22 (1978); Eddings v. Oklahoma, 455 U.S. 104 (1982).) He argues that California’s death penalty

23 statute includes an inherent right in the jury to afford mercy to a capital defendant. (See Doc.

24 No. 51-1, ¶ 610, citing Gregg, 428 U.S. at 199; People v. Gallego, 52 Cal. 3d 115, 199 (1990)

25 (defendant entitled to instruction necessary to convey to jury its authority to consider and act

26 on defendant’s mitigating evidence).) 27 Relatedly, Petitioner argues Schultz failed to request instruction that the jury may vote 28 107 1 for LWOP even in the absence of mitigating factors. (Doc. No. 51-1 ¶¶ 609-614, citing People

2 v. Bonin, 46 Cal. 3d 659, 698 (1988), overruled on other grounds by People v. Hill, 17 Cal. 4th

3 800, 823 (1998) (no sua sponte requirement to instruct on the meaning of LWOP); Penry v.

4 Lynaugh, 492 U.S. 302 (1989), abrogated by Atkins v. Virginia, (jury must be able to consider

5 and give effect to mitigating evidence relevant to defendant’s background, character, or

6 circumstances of crime); People v. Murtishaw, 48 Cal. 3d 1001, 1027 (1989) (each juror must

7 assign whatever moral or sympathetic value he deems appropriate to the relevant sentencing

8 factors, singly and in combination [he/she] must believe aggravation is so relatively great, and

9 mitigation so comparatively minor, that the defendant deserves death rather than society's next

10 most serious punishment, life in prison without parole); see also Doc. No. 142 at 161, citing

11 People v. Duncan, 53 Cal. 3d 955, 978 (1991) (jury may decide, even in the absence of

12 mitigating evidence, that the aggravating evidence is not comparatively substantial enough to

13 warrant death).

14 Petitioner points out that although the trial court stated outside the jury’s presence its 15 intention to instruct the penalty phase jury that they could consider sympathy for Petitioner

16 (RT 5072), Schultz failed to ensure that was done. (RT 5108.) He argues Schultz’s failure to

17 request such instruction was not motivated by trial tactics. (Doc. No. 142 at 163-64.)

18 Petitioner also argues that given death qualification bias and Schultz’s failure to present 19 mitigating evidence, Schultz should have requested an instruction that jurors were not required 20 to impose the death penalty. (Doc. No. 51-1, ¶¶ 609, 612; see also Doc. No. 142 at 159-60,

21 citing People v. Brown, 40 Cal. 3d 512, 541 (1985) reversed in part by California v. Brown,

22 479 U.S. 538 (1987) (sentencing factor “k” allows jury’s consideration of any mitigating

23 evidence).

24 However, the Court observes that the California Supreme Court has considered and 25 rejected these allegations in the context of trial court error, stating that:

26 Defendant contends the trial court erroneously refused instructions informing 27 the jurors in various terms that sympathy, pity, compassion, and mercy were factors in deciding the appropriate sentence. We find no error. “We have 28 108 repeatedly held that a jury told it may sympathetically consider all mitigating 1 evidence need not also be expressly instructed it may exercise ‘mercy.’” [Citations] Here, the trial court gave the standard instruction to take into account 2 “any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime and any sympathetic or other aspect of the 3 defendant’s character or record that the defendant offers as a basis for a sentence less than death, whether or not related to the offense for which he is on 4 trial.” The court also told the jury “to assign whatever moral or sympathetic value you deem appropriate to each and all of the various factors you are 5 permitted to consider.” No additional instruction was required. 6 People v. Bolin, 18 Cal. 4th 297, 343-44 (1998).

7 In reviewing penalty phase instructions, the test is “whether there is a reasonable 8 likelihood that the jury has applied the challenged instruction in a way that prevents the

9 consideration of constitutionally relevant evidence.” Boyde, 494 U.S. at 380. Further, a single

10 instruction “may not be judged in artificial isolation,” but must be considered in light of the

11 instructions as a whole and the entire trial record. McGuire, 502 U.S. at 72.

12 Petitioner has not identified clearly established authority from the United States 13 Supreme Court holding that a jury must be instructed in a particular manner. Accordingly,

14 since the Supreme Court has not decided the issue, the state supreme court’s decision could not

15 be contrary to or an unreasonable application of United States Supreme Court precedent.

16 Musladin, 549 U.S. at 76.

17 The California Supreme Court has found no requirement that a jury be instructed that it 18 may vote for LWOP even in the absence of mitigating factors. People v. Watson, 43 Cal. 4th

19 652, 704 (Cal. 2008) (citing People v. Cunningham, 25 Cal. 4th 926 (2001)) (California's death 20 penalty statute is not unconstitutional for failing to require a jury instruction as to which factors

21 are aggravating and which are mitigating, or an instruction that the absence of mitigating

22 factors does not constitute aggravation). Notably, that court on direct appeal in this case stated

23 that “[t]he jury is not constitutionally required to presume life imprisonment without possibility

24 of parole is the appropriate punishment.” Dickey, 35 Cal. 4 th at 931.

25 Here, the state supreme court reasonably could find the jury was not precluded from 26 considering constitutionally relevant mitigating and sympathetic evidence during their sentence 27 deliberations. The Supreme Court has never required a sentencing court to instruct a jury on

28 109 1 how to weigh and balance factors in aggravation and mitigation. In Tuilaepa, the Supreme

2 Court stated, “[a] capital sentencer need not be instructed how to weigh any particular fact in

3 the capital sentencing decision.” 512 U.S. at 979. “Once the jury finds that the defendant falls

4 within the legislatively defined category of persons eligible for the death penalty, . . . the jury

5 then is free to consider a myriad of factors to determine whether death is the appropriate

6 punishment.” Id. (quoting Ramos, 463 U.S. at 1008.)

7 In Kansas v. Marsh, the Supreme Court stated: 8 In aggregate, our precedents confer upon defendants the right to present 9 sentencers with information relevant to the sentencing decision and oblige sentencers to consider that information in determining the appropriate sentence. 10 The thrust of our mitigation jurisprudence ends here. “[W]e have never held that a specific method for balancing mitigating and aggravating factors in a 11 capital sentencing proceeding is constitutionally required.” 12 548 U.S. 163, 175 (2006) (quoting Franklin v. Lynaugh, 487 U.S. 164, 179 (1988)).

13 Petitioner’s argument that such an instruction was nonetheless available at the time of 14 his trial fails to address instruction given to his jury that it may consider:

15 [A]ny other circumstance which extenuates the gravity of the crime even though 16 it is not a legal excuse for the crime. And any sympathetic or other aspect of the defendant’s character or record that the defendant offers as a basis for a 17 sentence less than death, whether or not related to the offense for which he is on trial. You must disregard any jury instruction given to you in the guilt or 18 innocence phase of this trial which conflicts with this principle. 19 (RT 5152.) 20 Moreover, considerations of sympathy, mercy, and pity were addressed in instructions 21 given and Schultz argued in favor of such at the penalty closing. The jury was instructed that,

22 unlike in the guilt phase, it could consider sympathy during penalty phase deliberations. (Doc.

23 142 at 163 [quoting RT at 5072]; see CT at 502-03 [regarding CALJIC 8.88] describing juror’s

24 duty to weigh aggravating and mitigating factors under California law and allowing the jurors

25 to “assign whatever moral or sympathetic value you deem appropriate”.) The jury was

26 instructed “to disregard all other instructions given to you in other phases of this trial.” (CT 27 486); see Bolin, 18 Cal. 4th at 343 (special instruction on sympathy not required).

28 110 1 The jury was aware that from other instructions given that it was not required to vote 2 for death. (See CT at 494 [individual opinion], CT 498-99 [consider all evidence and

3 applicable factors], 502-03 [consider all evidence, applicable factors, and appropriateness of

4 death to determine which penalty is justified].) Petitioner’s argument that the penalty phase

5 instructions mislead the jury by omitting the possibility of a hung jury is unpersuasive for

6 reasons discussed in claim XII(D) below. (See also section of claim XII(E) below; RT 5145.)

7 Moreover, the record reflects that counsel for both sides touched on the issue of sympathy

8 during penalty phase closing argument. (RT 5134-40.)

9 Accordingly, the state supreme court reasonably could have found the instructions 10 given and the arguments of counsel sufficiently covered these areas raised by Petitioner.

11 (3) Special Circumstances 12 Petitioner argues Schultz failed to request instruction that the jury is not permitted to 13 double-count special circumstances. (See Doc. No. 51-1, ¶611, citing People v. Melton, 44

14 Cal. 3d 713, 768-69 (1988) (since statutory special circumstances are a subset of the

15 circumstances of the crime, a jury given no clarifying instructions might conceivably double-

16 count any such circumstances which were also special circumstances[;] on defendant's request,

17 the trial court should admonish the jury not to do so).)

18 Petitioner argues instruction with CALJIC 8.85 (regarding Penal Code section 19 190.3)(a)) that “in determining the appropriate penalty [the jury may consider] … the 20 circumstances of the crime of which the defendant was convicted in … the present proceeding

21 and the existence of any special circumstances found to be true”) allowed double-counting of

22 the special circumstances. (Doc. No. 142 at 164-65; CT 498-99.) He argues a clarifying

23 instruction should have been given. (Id., citing Melton, 44 Cal. 3d at 774 (conc. opn. of

24 Broussard, J.) (“I believe we should adhere to the policy of prior decisions and interpret Penal

25 Code section 190.3 to avoid duplicative aggravating factors derived from a single, indivisible

26 course of conduct.”). 27 However, the same claim was rejected by the United States Supreme Court, as follows: 28 111 1 At the penalty phase, the jury is instructed to consider numerous other factors 2 listed in § 190.3 in deciding whether to impose the death penalty on a particular defendant. Petitioners contend that three of those § 190.3 sentencing factors are 3 unconstitutional and that, as a consequence, it was error to instruct their juries to consider them. Both Proctor and Tuilaepa challenge factor (a), which requires 4 the sentencer to consider the “circumstances of the crime of which the defendant was convicted in the present proceeding and the existence of any 5 special circumstances found to be true.” Tuilaepa challenges two other factors as well .... We conclude that none of the three factors is defined in terms that 6 violate the Constitution. 7 Petitioners’ challenge to factor (a) is at some odds with settled principles, for our capital jurisprudence has established that the sentencer should consider the 8 circumstances of the crime in deciding whether to impose the death penalty. See, e.g., Woodson, 428 U.S., at 304, 96 S. Ct., at 2991 (“consideration of ... the 9 circumstances of the particular offense [is] a constitutionally indispensable part of the process of inflicting the penalty of death”). We would be hard pressed to 10 invalidate a jury instruction that implements what we have said the law requires. In any event, this California factor instructs the jury to consider a relevant 11 subject matter and does so in understandable terms. The circumstances of the crime are a traditional subject for consideration by the sentencer, and an 12 instruction to consider the circumstances is neither vague nor otherwise improper under our Eighth Amendment jurisprudence. 13

14 Cornwell v. Warden, San Quentin State Prison, No. 2:06-CV-00705 TLN KJN, 2018 WL

15 934542, at *104–05 (E.D. Cal. Feb. 15, 2018), citing Tuilaepa, 512 U.S. at 975–76.

16 Accordingly, Petitioner cannot point to clearly established federal law that duplicative 17 aggravating circumstances violate federal rights.

18 Furthermore, the California Supreme Court has found that “[f]actor (a) of section 190.3 19 … does not impermissibly result in ‘double-counting’ or automatically create a bias in favor of 20 a death verdict.” People v. Tully, 54 Cal. 4th 952, 1068 (2012). According to that court, no

21 such clarifying instruction is required. People v. Tafoya, 42 Cal. 4th 147, 188 (2007) (trial

22 court is not required “to instruct the jury not to ‘double count’ the same facts as circumstances

23 of the crime and as special circumstances.”).

24 Accordingly, the state supreme court reasonably could find the instructions given and 25 the arguments of counsel sufficiently covered these areas raised by Petitioner.

26 (4) Definition of LWOP and Execution of Sentence 27 Petitioner faults Schultz for failing to request instructions defining LWOP and that the 28 112 1 jury may assume the penalty selected would be carried out. (Doc. No. 51-1, ¶ 613; Doc. No.

2 142 at 166, citing People v. Thompson, 45 Cal. 3d 86, 131 (1988) (trial court may address issue

3 whether sentence would be carried out if raised by the jury).) He argues such instructions

4 would have reduced the risk that the jury would impose a death sentence merely to ensure that

5 Petitioner was not released back into society. (See Doc. No. 142 at 167.)

6 Claims of instructional error will constitute a violation of due process under the 7 Fourteenth Amendment only where the alleged error by itself infects the entire trial to such an

8 extent that the resulting conviction violates due process. Cupp v. Naughten, 414 U.S. 141, 147

9 (1973); see also Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). Where the alleged error

10 is the failure to give an instruction, the burden on the Petitioner is “especially heavy.” Kibbe,

11 431 U.S. at 155; see also Clark, 450 F.3d at 904.

12 Here, the California Supreme Court has found instruction relating to whether the 13 sentence imposed, LWOP or death, would be carried out is not required but rather disfavored.

14 People v. Letner and Tobin, 50 Cal. 4th 99, 203-07 (2010).] Petitioner’s reliance upon

15 Thompson is misplaced as that case is not authority otherwise. See 45 Cal. 3d. at 130-31.

16 Additionally, Petitioner acknowledges the jury was instructed at the penalty phase to 17 “[d]isregard all other instructions given to you in the other phases of this trial,” and not to be

18 “influenced” by “bias” toward Petitioner. (CT 486; see also Doc. No. 142 at 162 n.30.)

19 Any error in the state court’s determination of whether state law supported an 20 instruction in this case cannot form the basis for federal habeas relief. See McGuire, 502 U.S.

21 at 71 (“[T]he Due Process Clause does not permit the federal courts to engage in a finely tuned

22 review of the wisdom of state evidentiary rules”).]

23 ii. Prejudice 24 Petitioner argues these instructional errors undermined the reliability of his death 25 sentence.

26 In evaluating a claim of instructional error, a single instruction is not viewed in 27 isolation, but rather in the context of the overall charge. Spivey, 194 F.3d at 976. “[T]he

28 113 1 proper inquiry . . . is whether there is a reasonable likelihood that the jury has applied the

2 challenged instruction” in an unconstitutional manner. Boyde, 494 U.S. at 380. Additionally, a

3 reviewing court does not engage in a technical parsing of the instruction’s language, but

4 instead approaches the instructions in the same way that the jury would -- with a

5 “commonsense understanding of the instructions in the light of all that has taken place at the

6 trial.” Johnson, 509 U.S. at 368. Lastly, federal courts presume that juries follow instructions,

7 including cautionary instructions. Weeks, 528 U.S. at 234; see also Boyde, 494 U.S. at 381-85;

8 Tan, 413 F.3d at 1115.

9 Even if the trial court erred as alleged, the California Supreme Court reasonably could 10 find such error had no substantial and injurious effect on the jury’s penalty selection. Brecht,

11 507 U.S. at 620. Petitioner has not demonstrated on the evidentiary record any reasonable

12 likelihood the jury applied the trial court’s total instructional charge so as to preclude

13 consideration of constitutionally relevant evidence. A common-sense application of the

14 instructions given to the facts and circumstances of this case suggests the possibility of

15 prejudice from the omitted instructions is only remote.

16 The omitted instructions likely would not have been helpful to the jury. The requested 17 instructions readily appear cumulative of the instructions given by the trial court. (See CT

18 483-503; discussion below of claims XII(D-H), XXV(E, J).) A federal court can presume that

19 jurors follow all the instructions given them. Weeks, 528 U.S. at 234. 20 Accordingly, the California Supreme Court reasonably found that such omitted 21 instructions would not have provided any necessary guidance, such that their omission was not

22 prejudicial.

23 iii. Conclusions 24 A fair-minded jurist could find that Petitioner failed to establish counsel’s performance 25 fell below an objective standard of reasonableness and that absent counsel’s alleged

26 deficiencies, there remains a reasonable probability of a different outcome. Strickland, 466 27 U.S. at 694.

28 114 1 Accordingly, the California Supreme Court’s rejection of this claim was not contrary 2 to, or an unreasonable application of, clearly established federal law, or an unreasonable

3 determination of the facts in light of the evidence presented in the state court proceeding. 28

4 U.S.C. § 2254(d).

5 Claim III(G) shall be denied. 6 B. Claims Relating to Trial Court Error 7 1. Legal Standards 8 Trial court error violates due process where it renders the resulting criminal trial 9 fundamentally unfair. Chambers v. Mississippi, 410 U.S. 284, 294, 303 (1973).

10 2. Claim V 11 Petitioner alleges that during the period between the guilt and penalty phases, the trial 12 court erred by failing to hold a Marsden hearing and thereupon appointing new counsel,

13 violating his rights under the Fifth, Sixth, Eighth and Fourteenth Amendments. (Doc. No. 51-1

14 ¶¶ 627-651.)

15 a. Supplemental Legal Standards 16 It is clearly established that the right to the assistance of counsel, as guaranteed by the 17 Sixth Amendment of the United States Constitution entitles a defendant to representation that

18 is free from conflict. Wood, 450 U.S. at 271; see also discussion of claim II(I) above.

19 b. State Court Direct and Collateral Review 20 Petitioner presented claim on direct appeal and it was denied on the merits. Dickey, 35 21 Cal. 4th at 917-22.

22 The same claim was presented in the first state exhaustion petition (see Lod. Doc. No. 7 23 at 142-55) and denied on the merits (see Lod. Doc. No. 10.)

24 c. Analysis 25 i. Trial Court Error 26 Petitioner revisits his claim II(I) (ineffective assistance of counsel) allegations that a 27 complete breakdown of the attorney-client relationship was sufficient to trigger pre-penalty

28 115 1 phase proceedings under Marsden, recast here as trial court error.

2 Petitioner argues that he made a motion for substitute counsel and demonstrated 3 irreconcilable conflict with Schultz and that the trial court erred by wrongly denying the

4 motion. (See Doc. No. 142 at 168-69, citing Smith, 6 Cal. 4th at 696 (substitute counsel should

5 be appointed where representation is or likely will become ineffective); Sanchez v. Chappell,

6 No. 1:97-CV-06134-AWI, 2015 WL 4496379, at *49 (E.D. Cal. July 23, 2015) (“[t]he

7 overarching constitutional question is whether the attorney-client conflict has become so great

8 that it resulted in a total lack of communication or other significant impediment that resulted in

9 turn in an attorney-client relationship that fell short of that required by the Sixth

10 Amendment.”); see also Doc. No. 144 at 40-41.)

11 However, the state supreme court reasonably could find the trial court did not err as 12 alleged, for the reasons the follow.

13 (1) Petitioner’s Substitute Counsel Request Related to New Trial Motion 14 Petitioner argues the trial court wrongly construed his Marsden request for substitute 15 counsel for the penalty phase as a request applicable only to the new trial motion. (Doc. No.

16 51-1 ¶ 646.)

17 Petitioner faults the trial court for delaying until the conclusion of the penalty phase the 18 replacement of Schultz with Katherine Hart, who represented Petitioner on the motion for new

19 trial. (RT 5175-76.) He argues the trial court, when informed of his irreconcilable conflict 20 with Schultz and his desire for substitute counsel, erred in refusing to hold a Marsden hearing

21 prior to the penalty phase. (See Doc. No. 142 at 175, citing Schell, 218 F.3d at 1025 (“the

22 Sixth Amendment requires . . . that the matter be resolved on the merits before the case goes

23 forward.”)); Stenson v. Lambert, 504 F.3d 873, 886 (9th Cir. 2007) (“To determine whether a

24 conflict rises to the level of ‘irreconcilable,’ a court looks to three factors: 1) the extent of the

25 conflict; 2) the adequacy of the inquiry by the trial court; and 3) the timeliness of the motion

26 for substitution of counsel.”). 27 No Marsden Motion Before the Trial Court 28 116 1 The state supreme court reasonably could find Petitioner did not seek 2 Marsden counsel for the penalty trial.

3 Petitioner argues the state supreme court unreasonably determined facts in the record 4 for purposes of 28 U.S.C. § 2254(d)(2) when it rejected his claim that he was entitled to a

5 Marsden hearing prior to the penalty phase. He argues that court ignored evidence (i) he was

6 dissatisfied with Schultz’s guilt phase performance, (ii) Schultz was incompetent, (iii) Schultz

7 failed to advise him as to the Marsden process and the consequences of not personally

8 attending the penalty phase proceedings, and (iv) he did not trust Schultz even to prepare the

9 form waiver of personal appearance at the penalty phase. (See Doc. No. 142 at 170-74; see

10 also RT 5045-48, 5115-18.)

11 Petitioner suggests the trial court, when appointing Ms. Hart to represent Petitioner 12 following the penalty verdict, acknowledged improper postponement of substitute counsel by

13 stating that “[Petitioner] had indicted at the conclusion of the guilt phase that he was - he

14 wanted somebody else to continue with the representation of him in this case.” (RT 5175.)

15 He suggests the trial court intentionally avoided a Marsden inquiry in the middle of trial as a

16 matter of judicial expediency. (Doc. No. 142 at 176.)

17 Still, based on the record discussed in claim II(I) above, summarized here, the state 18 supreme court reasonably could find Petitioner’s request for substitute counsel related to the

19 motion for new trial rather than the penalty phase. See Dickey, 35 Cal. 4th at 921; see also 20 United States v. Robinson, 913 F.2d. 712, 716 (9th Cir. 1990) (defendant’s anger over

21 counsel’s failure to present frivolous defenses not a motion for substitute counsel; cf. Schell,

22 218 F.3d at 1025 (a motion for new counsel should be resolved on the merits before the case

23 moves forward).

24 The state supreme court reasonably could find the record to suggest Petitioner took 25 issue with Schultz’s guilt phase tactics, rather than raising Marsden rights regarding Schultz’s

26 continued representation at the penalty phase. (See Doc. No. 142 at 51, citing Schell, 218 F.3d 27 at 1025 (“It is well established and clear that the Sixth Amendment requires on the record an

28 117 1 appropriate inquiry into the grounds for such a [Marsden] motion, and that the matter be

2 resolved on the merits before the case goes forward.”).)

3 The trial court, on the motion for new trial, conceded that it “used the wrong words” 4 when telling Petitioner that “we don’t conduct Marsden hearing in the middle of the trial.”

5 (RT 5533.) Yet the trial court went on to observe that it did not appear “[Petitioner] was really

6 asking for a Marsden type hearing. (RT 5533); that although that court “used the words

7 Marsden hearing [ ] in truth it doesn’t appear [ ] that he was asking for a Marsden hearing.”

8 (Id.) The noted record suggests that was the case.

9 The state supreme court found as a matter of state law “[w]e do not find Marsden error 10 where complaints of counsel’s inadequacy involve tactical disagreements.” Dickey, 35 Cal. 4th

11 at 922. That court could reasonably find that Petitioner did not motion under Marsden for

12 substitute counsel, but rather sought substitute counsel to raise guilt phase ineffective

13 assistance claims on a new trial motion to be heard after the penalty trial, such that Schultz’s

14 failure to request a Marsden hearing was not deficient. (Doc. No. 51-1 at ¶¶ 346-347, citing

15 Schell, 218 F.3d at 1026; see also RT 5045-49, 5533; CT 571-576; Pet. Ex. 12 ¶ 12.)

16 No Constructive Denial of Counsel at the Penalty Phase 17 The state supreme court reasonably could find Petitioner was effectively represented by 18 Schultz at the penalty phase proceeding. Based on the record discussed in claim II(I) above,

19 summarized here, the state supreme court reasonably could find the noted breakdown in 20 relationship between Schultz and Petitioner did not deny him effective assistance of counsel

21 thereafter.

22 A breakdown in the attorney-client relationship can result in a denial of the right to 23 effective assistance of counsel. Frazer, 18 F.3d at 782-83, 785; see also Brown, 424 F.2d. at

24 1169-70 (trial court’s failure to conduct inquiry into irreconcilable conflict arising from the

25 client’s refusal to communicate or cooperate with counsel resulted in denial of effective

26 assistance of counsel); Schell, 218 F.3d at 1026, citing Smith, 923 F.2d at 1320 (the 27 overarching constitutional question is whether the attorney-client conflict has become so great

28 118 1 that “[i]t resulted in a total lack of communication or other significant impediment that resulted

2 in turn in an attorney-client relationship that fell short of that required by the Sixth

3 Amendment.”). “The court must consider: (i) the extent of the conflict; (ii) whether the trial

4 judge made an appropriate inquiry into the extent of the conflict; and (iii) the timeliness of the

5 motion to substitute counsel.” Daniels, 428 F.3d at 1197-98 (citing United States v. Moore,

6 159 F.3d 1154, 1159 n.3 (9th Cir. 1998).

7 The record reflects that at the beginning of the penalty phase, Schultz advised the trial 8 court in limine that Petitioner believed Schultz made incompetent decisions during the guilt

9 phase (RT 5045) and that Petitioner did not want to be personally present in court during

10 penalty proceedings (RT 5100).

11 Petitioner confirmed his tactical disagreements with Schultz’s guilt phase 12 representation (RT 5048) and that he did not want to attend the penalty phase and did not want

13 to present a penalty defense (RT 5100-02). After colloquy with the trial court, Petitioner

14 waived personal presence at the penalty trial. (RT 5100-18.)

15 Petitioner argues as he did above that the breakdown in communication with Schultz 16 and the latter’s unwillingness to advise Petitioner regarding waiver of personal presence at

17 penalty proceedings suggested a total breakdown in the attorney-client relationship and

18 abandonment by Schultz. (Doc. No. 51-1 ¶¶ 642-647; see also RT 5045-49; 5114-20; Doc.

19 No. 144 at 42.) He points to his alleged refusal to communicate with Schultz and continue 20 with him as counsel and waiving personal presence at the penalty phase proceedings. He

21 points to his questioning Schultz’s competence, citing to the latter’s decisions regarding

22 presentation of the guilt phase defense including issues raised, witnesses called, and witness

23 examination. (RT 5048.)

24 Petitioner contends he was unequivocal in his request for Marsden counsel prior to the 25 penalty trial and that the trial court erred by denying him a Marsden hearing. (Id.; Doc. No.

26 51-1 ¶ 639, citing Douglas v. Woodford, 316 F.3d 1079, 1094 (9th Cir. 2003) (Marsden 27 hearing appropriately requested after guilt phase and prior to penalty phase). He notes his

28 119 1 mistrust of Schultz after the guilt phase verdicts as manifest in his refusal to sign a form waiver

2 prepared by Schultz.

3 However, mere disagreements over trial tactics, as here, do not alone require a Marsden 4 hearing. Schell, 218 F.3d at 1025. The state supreme court, on the facts and circumstances of

5 this case, reasonably could find any conflict or disagreement between Petitioner and Schultz as

6 to handling of the guilt phase defense did not precipitate a total breakdown in the attorney-

7 client relationship rendering Schultz ineffective as penalty phase counsel.

8 When a trial court is informed of a conflict between trial counsel and a defendant, “the 9 trial court should question the attorney or defendant ‘privately and in depth,’ and examine

10 available witnesses [. . . .]” United States v. Nguyen, 262 F.3d 998, 1004 (9th Cir. 2001)

11 (quoting Moore, 159 F.3d at 1160). A conflict inquiry is adequate if it “ease[s] the defendant's

12 dissatisfaction, distrust, and concern” and “provide[s] a ‘sufficient basis for reaching an

13 informed decision.’ ” United States v. Adelzo–Gonzalez, 268 F.3d 772, 777 (2001). The state

14 supreme court reasonably could find the trial court’s noted in limine inquiry and colloquy

15 sufficed in these regards. (See discussion of claim II(I), above.)

16 Particularly, Schultz’s advised Petitioner on legal issues and recourse relating to the 17 latter’s concerns of the poor guilt phase result. Schultz advised him to seek substitute counsel

18 on a new trial motion. (See RT 5045-47.) Schultz disclosed Petitioner’s concerns at an in

19 limine hearing. The trial court questioned both Schultz and Petitioner regarding the nature and 20 extent of the breakdown in communications and based thereon determined it related to issues

21 right for new trial motion.

22 The record reflects that Schultz continued to advise Petitioner. Schultz was present 23 when the trial court took Petitioner’s oral waiver of personal presence. (RT 5102-03.)

24 Subsequently, when it became apparent state law required a written waiver and Petitioner

25 refused Schultz’s proffered form waiver, (RT 5114-15), Schultz nonetheless approved as

26 defense counsel the written waiver provided by the trial court and signed by Petitioner. (CT 27 475-476; see also Penal Code § 977(b)(2); RT 5116-20.) Schultz advised Petitioner regarding

28 120 1 his stipulation to the prior Nevada conviction charged in the information. (RT 5073-74.)

2 Schultz also represented Petitioner in court at the penalty trial. (RT 5124-41.)

3 The state supreme court reasonably could find Petitioner’s absenting himself from the 4 penalty trial was not a manifestation of an irreconcilably broken relationship with Schultz, but

5 rather of dissatisfaction at being convicted and of disinclination to present a penalty defense.

6 (See claims III(B), VI and VII, post.) Following his waiver of personal presence, Petitioner

7 monitored proceedings from a hold cell and had ready access to the courtroom and to Schultz.

8 (See RT 5101.)

9 Likewise on these facts, Petitioner’s expressed distrust of Schultz and doubts as to his 10 competency appear equivocal. While Petitioner questioned guilt phase trial tactics and refused

11 to sign a form waiver of personal presence prepared by Schultz, he nonetheless agreed to

12 proceed to the penalty phase with Schultz as his attorney and accepted representation by

13 Schultz, reserving the issue of substitute counsel for the new trial motion. See Daniels, 428

14 F.3d at 1197 (citing Morris v. Slappy, 461 U.S. 1, 3-4 (1983)) (“[T]he right to counsel does not

15 guarantee a right to counsel with whom the accused has a ‘meaningful attorney-client

16 relationship.”).

17 Significantly, Petitioner has not demonstrated that he had any objection to the penalty 18 defense, evidence, and argument or that he was denied opportunity to consult with Schultz

19 thereon. The penalty defense theory did not involve contesting the aggravating evidence 20 placed before the jury, i.e. the fact of Petitioner’s felony burglary conviction and the five

21 autopsy photographs. As noted, during pretrial interviews with the defense team, Petitioner

22 expressed his desire that facts underlying his burglary conviction be kept from the jury. (See

23 Pet. Ex. 23 at SH002091-94.)

24 Petitioner participated in the penalty phase proceedings by audio and video feed to his 25 holding cell and had the option of returning to court and consulting Schultz at any time. (RT

26 5101-02; see also Lod. Doc. No. 8, Response to SHCP, at 123-26); see Morris, 461 U.S. at 13- 27 14 (holding that the Sixth Amendment requires only competent representation and does not

28 121 1 guarantee a meaningful relationship between a defendant and counsel). Petitioner allowed

2 Schultz to continue advising and representing him through sentencing.

3 Additionally, for the same reasons discussed above, the state supreme court reasonably 4 could find the alleged conflict as not serious enough to justify delaying the penalty trial for

5 substitute counsel. See Moore, 159 F.3d at 1161; Adelzo-Gonzalez, 268 F.3d at 780.

6 ii. Any Error Was Non-Structural and Harmless 7 Even assuming arguendo the trial court erred as alleged, the California Supreme Court 8 reasonably could find the error not structural and harmless.

9 (1) Structural Error 10 Petitioner argues structural error; that prejudice is presumed from constructive denial of 11 counsel during the critical penalty phase proceedings. (Doc. No. 142 at 176-77 citing Cronic,

12 466 U.S. at 667.)

13 Structural error is error that permeates “[t]he entire conduct of the trial from the 14 beginning to end” or “affect[s] the framework within which the trial proceeds.” Campbell, 408

15 F.3d at 1171, citing Arizona v. Fulminante, 499 U.S. 279, 309-10 (1991). The list of structural

16 errors is short and includes “total deprivation of the right to counsel at trial.” See id., at 1172.

17 As noted, a “serious conflict” between Petitioner and counsel may give rise to a 18 presumption of prejudice. Perry, 488 U.S. at 278-79; see also Schell, 218 F.3d 1027.

19 However, the state supreme court reasonably could find Petitioner was not 20 constructively denied counsel at the penalty phase entitling him to a presumption of prejudice,

21 for the reasons discussed above. See Perry, 488 U.S. at 278-79. In sum, that court reasonably

22 could find on the record before it that Petitioner did not request substitute counsel for the

23 penalty phase; continued with Schultz as penalty phase counsel and had access to those

24 proceedings and to Schultz; and did not object to the penalty defense and argument or

25 demonstrate such was constitutionally inadequate or that he was denied participation therein.

26 (2) Harmless Error 27 Petitioner argues in the alternative the alleged trial court error was more than harmless 28 122 1 because it had a substantial and injurious effect or influence in the jury’s determination of his

2 sentence.

3 Where the constitutional error in issue is not structural, habeas relief is unavailable 4 unless the error had a substantial and injurious effect on the verdict. Brecht, 507 U.S. at 637.

5 Petitioner argues the trial court’s error was more than harmless because it is highly 6 likely a Marsden hearing would have resulted in appointment of substitute counsel and an

7 effective penalty defense consistent with his habeas proffer evidence discussed above. (See

8 Doc. No. 51-1 ¶ 650.)

9 However, for the reasons stated, the state supreme court reasonably could find 10 Petitioner was not denied counsel at and participation in the penalty phase defense. (See e.g.,

11 discussion of claim II(I) above and claim VI and VII below.) Notably, Petitioner assisted the

12 mitigation defense investigation by providing identities of witnesses and life history

13 information and discussing mitigation phase tactics with the defense team. He waived personal

14 presence at the penalty trial following advisement of rights, the written approval of Schultz,

15 and subject to audio and video monitoring from a cell adjacent to the courtroom and the ability

16 to return to court and consult with Schultz who continued to represent him. See Sullivan, 446

17 U.S. at 346 (reasonably appeared that counsel and defendant accepted any conflict by

18 proceeding).

19 The state supreme court reasonably could have determined that Schultz, by leaving to 20 Petitioner the decision whether to attend the penalty trial, did not deny Petitioner’s right to

21 counsel during that portion of the proceeding. Particularly, the trial court confirmed in

22 colloquy with Petitioner that he was aware of the nature of the penalty phase trial as well as the

23 rights he sought to waive. (See RT 5115-18.) Petitioner engaged the trial court in a discussion

24 of the terms of the waiver and demanded edits limiting the waiver to “personal presence only”

25 and to the “balance of the penalty phase.” (Id.) Petitioner specified the waiver applied only

26 while the audio video feed was working. (RT 5103.) He ultimately signed a personal presence 27 waiver prepared by the trial court (RT 5120) and approved by Schultz as Petitioner’s attorney

28 123 1 (CT 475-476).

2 Moreover, seemingly apart from his issues with Schultz, Petitioner stated his desire that 3 no evidence in mitigation be presented. (RT 5101-02.) Petitioner has not shown his anti-

4 mitigation defense position, which he appeared to attribute to the jury’s verdict of conviction

5 (see RT 5201-02), would have changed had substitute counsel been appointed. Even if

6 Petitioner might have changed his mind upon appointment of substitute counsel, it remains the

7 totality of the mitigating evidence appears outweighed by the aggravating and rebuttal

8 evidence, for the reasons stated. (See claim III(C-E), above.) In short, Petitioner has not

9 shown how substitute counsel, had one been appointed, would have enabled a more favorable

10 outcome on these facts and circumstances.

11 For the reasons stated, the state supreme court reasonably could find any error was not 12 more than harmless.

13 iii. Conclusions 14 The California Supreme Court was not unreasonable in denying allegations the trial 15 court prejudicially erred by failing to hold a Marsden hearing and appoint new counsel during

16 the period intervening the guilt and penalty phase.

17 Accordingly, the California Supreme Court’s rejection of this claim was not contrary 18 to, or an unreasonable application of, clearly established federal law, or an unreasonable

19 determination of the facts in light of the evidence presented in the state court proceeding. 28 20 U.S.C. § 2254(d).

21 Claim V shall be denied. 22 3. Claims VI and VII 23 Petitioner revisits incompetency allegations in claim III(B) above, here recast as claims 24 the trail court erred by (i) failing to inquire into his competency (i.e. claim VI) and (ii)

25 accepting his incompetent waiver of personal presence at the penalty phase trial (i.e. claim

26 VII), violating his rights under Fifth, Sixth, Eighth and Fourteenth Amendments. (Doc. No. 27 51-1 ¶¶ 652-677.)

28 124 1 a. Supplemental Legal Standard 2 The trial or conviction of a person who is legally incompetent is a substantive due 3 process violation. Cooper, 517 U.S. at 354; see also section VII, A, 6, a, ante.

4 “[T]he standard for competence to stand trial is whether a defendant has sufficient 5 present ability to consult with his lawyer with a reasonable degree of rational understanding

6 and has a rational as well as factual understanding of the proceedings against him.” Moran,

7 509 U.S. at 396, citing Dusky, 362 U.S. at 402); see also Clark, 769 F.3d at 729.

8 b. State Court Direct and Collateral Review 9 Petitioner presented claim VI in his second state exhaustion petition (Lod. Doc. No. 30 10 at 305-12) and it was denied on the merits and on procedural grounds (Lod. Doc. No. 31, Order

11 Denying Cal. Pet., In re Colin Raker Dickey, No. S165302 (May 29, 2012)).

12 Petitioner presented claim VII on direct appeal and it was denied on the merits. Dickey, 13 35 Cal. 4th at 922-24.

14 c. Analysis 15 i. Trial Court Error 16 Petitioner argues the trial court had before it evidence of incompetence sufficient to (i) 17 raise a reasonable doubt triggering the need for a state law competency hearing (see Penal

18 Code sections 1368 providing the trial court may sua sponte order a competency hearing when

19 “a doubt arises in the mind of the judge as to the mental competence of the defendant”) and (ii) 20 call in question the validity of his purported waiver of personal presence at the penalty phase

21 trial. (See Doc. No. 142 at 178-93.) His specific arguments are considered below.

22 (1) Failure to Hold Competency Hearing 23 Petitioner argues that due process required the trial court to inquire sua sponte whether 24 he was competent for the penalty trial. He points to his precarious mental state, breakdown in

25 communication with Schultz, absence from the courtroom during the penalty trial, and sleep

26 deprivation caused by untenable conditions of confinement during trial. (See claims II(I), 27 III(B); see also Moran, 509 U.S. at 400-01; Doc. No. 135 at 109-12 [regarding guilt claim

28 125 1 XXIV].) Petitioner characterizes as “suicidal” his decisions to absent himself from the penalty

2 trial and break off all communication with Schultz. (Doc. No. 144 at 43-44.)

3 Petitioner also points to habeas proffered expert opinion that after the guilt verdicts, he 4 lost all hope and his cognitive limitations and psychiatric impairments impacted his ability to

5 assist his attorney in conducting his defense. (Pet. Ex. 2 Ex. H at 24.) As noted, Dr. Kharanov

6 found that Petitioner’s “history of victimization, the combined stress of protracted legal

7 proceedings, as well as the courtroom setting itself, could have produced further mental

8 decompensation”, leaving him unable to consult with his attorney and assist in his defense and

9 thus incompetent at the penalty phase. (Id.; see also Doc. No. 142 at 180-81); Godinez, 509

10 U.S. at 396.

11 Petitioner argues the foregoing circumstances should have suggested to the trial court 12 “a change [in his mental state] that would render [him] unable to meet the standards of

13 competence” and the need for a competency hearing. Drope, 420 U.S. at 181; (see also Doc.

14 No. 51-1 ¶¶ 660-661; Doc. No. 144 at 43.) He argues that had such a hearing been held, he

15 would have been found incompetent for the penalty trial.

16 However, the state supreme court reasonably could find Petitioner failed to demonstrate 17 indicia in incompetency sufficient to support the claim, for the reasons stated. (See discussion

18 of claims II(I) and III(B) above; see also Doc. No. 135 at 109-12 [regarding guilt phase claim

19 XXIV allegations that petitioner’s conditions of confinement impaired his ability to 20 concentrate and left him incompetent for the penalty trial].) Notably, the record reflects that

21 shortly after Petitioner’s colloquy with the trial court regarding issues with Schultz’s

22 competency, he admitted his prior felony conviction based upon consultation and advisement

23 by Schultz. (RT 5073-79.) Schultz did not raise a doubt as to Petitioner’s competency.

24 Petitioner himself proceeded to delineate the parameters of his desired waiver of 25 presence from the penalty phase; that he was waiving presence only at “tomorrow’s court

26 proceedings”, i.e. the “sentencing phase” and for “no other proceeding, no other court is to be 27 conducted out of my presence[.]” (RT 5115-16.) He directed preparation of the written waiver

28 126 1 of personal presence by the trial court containing such limitations. (RT 5115-19.) He

2 expressly conditioned his waiver of personal presence upon being able to view and hear the

3 proceedings and refused to enter a waiver if the audio/video feed failed during the penalty

4 proceedings. (Id.; see also RT at 5103.)

5 As noted above, Schultz’s failure to observe and raise issues of competency, while not 6 dispositive, Odle, 238 F.3d at 1088-89, are nonetheless significant evidence of Petitioner’s

7 competency.

8 Furthermore, Petitioner’s alleged indicia of incompetency are not on par with those in 9 United States v. Loyola-Dominguez, a case upon which he relies. 125 F.3d 1315, 1318-19 (9th

10 Cir. 1997) (inadequately explained attempted suicide on the eve of trial); cf. Amaya-Ruiz v.

11 Stewart, 121 F.3d 486, 489 (9th Cir. 1997) (no bona fide doubt as to competency where

12 defendant was evaluated by mental health professional who determined his alleged irrational

13 behavior appeared the result of a strategy of non-cooperation, and in absence of any history of

14 erratic behavior).

15 Accordingly, the state supreme court reasonably could find the trial court was not 16 chargeable with a reasonable doubt as to Petitioner’s penalty phase competency.

17 (2) Acceptance of Personal Presence Waiver 18 Petitioner argues the trial court erred by failing to raise a doubt whether he had the 19 competency to waive personal presence at the penalty trial and did so voluntarily, intelligently, 20 and knowingly. (See discussion of claims II(I) and III(B) above; see also Moran, 509 U.S. at

21 400-01; Doc. No. 135 at 109-12 [regarding claim XXIV].)

22 The state supreme court reasonably could find Petitioner’s specific arguments, 23 discussed below, to be unpersuasive.

24 Penalty Trial as a Critical Stage of Proceeding 25 Petitioner argues the penalty trial was a critical stage of his proceeding at which his 26 right to counsel and personal presence were constitutionally required. (Doc. No. 51-1 ¶ 669; 27 Doc. No. 142 at 189-90, citing Kentucky v. Stincer, 482 U.S. 730, 745 (1987) (a defendant is

28 127 1 guaranteed the right to be present at any stage of the criminal proceeding that is critical to its

2 outcome if his presence would contribute to the fairness of the procedure); see also Gerlaugh

3 v. Stewart, 129 F.3d 1027, 1045 (9th Cir. 1997) (Reinhardt, J., concurring and dissenting)

4 (penalty phase is the most critical stage of the proceeding).

5 “It has long and clearly been held that criminal defendants are entitled to effective 6 assistance of counsel during all critical stages of the criminal process.” Nunes, 350 F.3d at

7 1052. “[I]t is counsel's dut[y] to consult with the defendant on important decisions and to keep

8 the defendant informed of important developments in the course of the prosecution. Those

9 obligations ensure that the ultimate authority remains with the defendant to make certain

10 fundamental decisions regarding the case, as to whether to plead guilty, waive a jury, testify in

11 his or her own behalf, or take an appeal.” Id. at 1053. Relatedly, a criminal defendant has the

12 right to be present for all critical stages of his trial. United States v. Gagnon, 470 U.S. 522,

13 526 (1985).

14 However, Petitioner has not demonstrated clearly established federal law that the 15 penalty phase represented a critical phase of his trial. See Moore v. Campbell, 344 F.3d 1313,

16 1323 (11th Cir. 2003) (“the issue of whether a defendant must be present at all times in a

17 capital trial has not yet been settled by the Supreme Court”).

18 A criminal defendant has the right to be present at trial “whenever his presence has a 19 relation, reasonably substantial, to the fullness of his opportunity to defend against the charge.” 20 Stincer, 482 U.S. at 745. The Supreme Court has not clearly established what would contribute

21 to the fairness of the procedure at a stage critical to [the criminal proceeding’s] outcome for

22 purposes of a due process violation). See Stincer, 482 U.S. at 745. Still a defendant need not

23 be present “when presence would be useless, or the benefit but a shadow.” Id., quoting Snyder

24 v. Massachusetts, 291 U.S. 97, 106-07 (1934) (overruled in part on other grounds by Malloy v.

25 Hogan, 378 U.S. 1 (1964)); see also Rice v. Wood, 77 F.3d 1138, 1140 at n.2 (listing cases

26 finding right to presence not violated). 27 The California Supreme Court has “repeatedly rejected the argument that the Sixth 28 128 1 Amendment [C]onfrontation [C]lause of the United States Constitution or the due process

2 clause of the California Constitution prevents a criminal defendant from waiving the right of

3 presence at a critical stage of a capital trial.” Bolin, 18 Cal. 4th at 325. In California, a capital

4 defendant may validly waive his presence at critical stages of the trial, at least where evidence

5 is not taken. See e.g., People v. Weaver 26 Cal. 4th 876, 966 (2001); People v. Jackson 13 Cal.

6 4th 1164, 1209–1210 (1996). Such a waiver is ordinarily an intentional relinquishment or

7 abandonment of a known right or privilege. Johnson, 304 U.S. at 464.

8 In California, a defendant’s “absence from various court proceedings, even without 9 waiver, may be declared non-prejudicial in situations where his presence does not bear a

10 reasonably substantial relation to the fullness of his opportunity to defend against the charge.”

11 People v. Johnson, 6 Cal. 4th 1, 18 (1993), citing People v. Garrison, 47 Cal. 3d 746, 782

12 (1989), quoting People v. Bloyd, 43 Cal. 3d 333, 359-60 (1987), abrogated on other grounds

13 by People v. Rogers, 39 Cal. 4th 826, 879 (2006).

14 The state supreme court, on the facts and circumstances of this case, reasonably could 15 find Petitioner has not demonstrated that his physical presence in the courtroom could have

16 contributed to the fairness of his penalty trial; or that his physical presence would have

17 impacted the sentence determination. The penalty defense theory did not involve contesting

18 the aggravating evidence placed before the jury, i.e. the fact of Petitioner’s felony burglary

19 conviction and the five autopsy photographs. Petitioner has not demonstrated that he had any 20 objection to the evidence or was denied opportunity to consult with counsel thereon.

21 Moreover, Schultz was present at the penalty trial and represented Petitioner without 22 apparent objection. See discussion of claim II(I) above; Campbell, 408 F.3d at 1173

23 (defendant’s absence from chambers conference regarding defense counsel’s potential conflict

24 of interest not a due process violation where no denial of fair and impartial trial). Petitioner

25 participated in the penalty phase proceedings by audio and video feed to his holding cell and

26 had the option of returning to court and presumably consulting Schultz at any time. 27 Penalty Trial as an Evidentiary Stage of Proceeding 28 129 1 Petitioner argues an unwaivable state law right in a capital defendant to personal 2 presence at every portion of a proceeding where evidence is taken. (Doc. No. 51-1 ¶ 676,

3 citing People v. Frye, 18 Cal. 4th 894, 1010-12 (1998); see also Doc. No. 142 at 193, citing

4 Penal Code §§ 977, 1043.) Petitioner argues deprivation of this state right made his penalty

5 trial fundamentally unfair, denying him due process. (Id., citing Hicks v. Oklahoma, 447 U.S.

6 343, 346-47 (1980)).

7 Under California law, “i]n all cases in which a felony is charged, the accused shall be 8 present . . . during those portions of the trial when evidence is taken before the trier of fact[.]”

9 Penal Code § 977.

10 The state supreme court conceded Petitioner was denied his state law right to personal 11 presence when evidence was taken. See Dickey, 35 Cal. 4th 923-24. That court found the trial

12 court erred in this regard, but that the error was harmless, as discussed below. (See also, id.)

13 Competent, Voluntary, Knowing and Intelligent Waiver 14 Petitioner revisits his noted arguments and evidence that he was incompetent at the 15 penalty phase and unable to waive rights such that any purported waiver was not voluntary,

16 knowing and intentional. (Doc. No. 142 at 50, citing Brady v. United States, 397 U.S. 742, 748

17 (1970)) (“[W]aivers of constitutional rights not only must be voluntary but must be knowing,

18 intelligent acts done with sufficient awareness of the relevant circumstances and likely

19 consequences.”); see also Drope, 420 U.S. at 181; Doc. No. 51-1 ¶¶ 660-661; Doc. No. 144 at 20 43.) Based thereon, he argues incompetence to waive rights to personal presence at the penalty

21 phase.

22 Petitioner suggests that Schultz then was unable to assist him given that the waiver 23 followed on the heels of the breakdown in communication with Schultz and the trial court’s

24 improper denial of a Marden hearing. (Doc. No. 142 at 192-93.) Petitioner argues he was not

25 informed as to the circumstances and consequences surrounding the waiver of personal

26 presence. (See Doc. No. 51-1 ¶ 671.) He argues the only advice he received was the trial 27 court’s admonition that “I do want to let you know, however, that it probably would be wiser to

28 130 1 be in the courtroom during the taking of testimony[.]” (RT 5101.)

2 However, the state supreme court reasonably could find Petitioner was not incompetent 3 at the penalty trial, for the reasons stated. (See the discussion of claims II(I) and III(B) above.)

4 Additionally, the state supreme court reasonably could find Petitioner’s personal 5 presence waiver was voluntary, knowing and intelligent. The record shows that Petitioner

6 waived personal presence orally on the record and in writing. Before doing so, the trial court

7 engaged him in a colloquy regarding the nature and extent of the waiver and his understanding

8 of it. (See RT 5100-03, 5113-20; see also Doc. No. 51-1 ¶¶ 671-674.) As noted, in the course

9 thereof, Petitioner was advised by the trial court that “it would probably be wiser to be in the

10 courtroom”. (RT 5101.)

11 At that time, the trial court provided specific advisement regarding waiver of rights 12 consistent with Penal Code section 977 and discussed Petitioner’s requests for modification of

13 the court’s proposed form waiver language. (See RT 5113-20.) Petitioner requested and

14 received changes to the form waiver including that he be provided with an audio and video

15 feed of penalty phase proceedings and that the waiver be limited to presence at the penalty

16 trial. (Id.; CT 475-76.)

17 During the personal presence waiver proceedings, Petitioner acknowledged his 18 understanding of the nature of the penalty phase; that it was his opportunity to avoid the death

19 penalty by presenting evidence evoking sympathy and pity, and stated that he had no desire to 20 present a mitigation defense, to wit that:

21 [He] would just as soon that the defense not even say nothing, just rest. I don’t 22 intend to plead nothing to the jury. I’d just as soon sit in the cell. I have no intentions or desire to try to have any sympathy or pity from the jury that 23 convicted me of these crimes. I don’t intend to be present, neither; I don’t wish to be. 24

25 (RT 5201-02); see also Dickey, 35 Cal. 4th at 923; see also Doc. No. 51-1 ¶¶ 671-674;

26 Campbell v. Rice, 408 F.3d 1166, 1173 (1991) (defendant’s absence from chambers conference 27 regarding defense counsel’s potential conflict of interest not a due process violation where no

28 131 1 denial of fair and impartial trial). Relatedly, during pre-trial defense interviews, Petitioner

2 stated that he was not interested in anyone saving his life if a jury should be so stupid as to

3 convict him. (Pet. Ex. 23 at SH002137.)

4 Petitioner argues that his written waiver of personal presence was invalid and coerced 5 because it was procured without the advice of counsel (see RT 5047) and based upon

6 misinformation provided by Schultz regarding entitlement to a Marsden hearing. (See Doc.

7 No. 142 at 185-86, citing Schell, 218 F.3d at 1025 (9th Cir. 2000) (Marsden motion to be

8 resolved before the case moves forward); see also the discussion of Claim V above.) He

9 argues that trial court erred by failing to explore the obvious breakdown in the attorney-client

10 relationship when it was raised by Petitioner prior to the penalty phase. (Doc. No. 142 at 187,

11 citing RT 5048, 5100-15.)

12 However, these conclusory arguments fail because the state supreme court reasonably 13 could find Petition was not denied assistance of counsel at the penalty phase, for the reasons

14 stated. (See discussion of claims II(I) and III(B) above; see also Campbell, 18 F.3d at 672).

15 Notably, Petitioner has not shown Schultz failed to advise him regarding waiver of personal

16 presence at the penalty trial including the consequences thereof. The records reflect only that

17 Schultz told Petitioner the decision was “up to him” and that Schultz “was not going to make a

18 recommendation one way or the other.” (RT 5100.) Schultz and Petitioner acquiesced in

19 Petitioner’s absence from the penalty phase following the latter’s colloquy by the trial court 20 and the trial court’s determination that a Marsden motion was not then before it. Petitioner

21 received an audio and video feed from a room off the courtroom. Petitioner had the option of

22 returning to the courtroom, and presumably consulting with Schultz who continued to represent

23 him during the entirety of the penalty trial. The state supreme court reasonably could reject

24 claimed coercion of the waiver on these facts. Petitioner has not demonstrated otherwise on

25 the factual record.

26 To the extent Petitioner argues his waiver was possibly impaired by his conditions of 27 confinement including medication, lack of sleep, and anxiety (see Doc. No. 51-1 at 188, 191,

28 132 1 citing Johnson, 304 U.S. at 464-65), the argument fails for the same reasons discussed by this

2 Court in denying guilt phase claim XXIV. (See Doc. No. 135 at 109-12.) Significantly,

3 Petitioner does not point to facts suggesting confusion, disorientation, or problems

4 understanding and participating in court proceedings. His demeanor and conduct in court,

5 especially in negotiating his limited waiver of personal presence, reasonably suggest no such

6 impairment.

7 ii. Any Error Was neither Structural nor More Than Harmless 8 Petitioner argues his asserted incompetency raises structural error such that meeting the 9 Brecht standard of harm is not required. (See Doc. No. 51-1 at ¶ 665; Doc. No. 142 at 183,

10 citing Brecht, 507 U.S. at 637-38 & n.9.) Alternatively, he argues the allegations in these

11 claims raise errors that are more than harmless under Brecht because the errors made his

12 penalty trial unfair. (See Id.)

13 However, Petitioner has not demonstrated structural error because the state supreme 14 court reasonably rejected his competency allegations, for the reasons stated.

15 Moreover, the state supreme court reasonably could find Petitioner’s personal presence 16 at the penalty trial to be waivable to the extent his presence did not bear “a substantial relation

17 to the fullness of his opportunity to defend against the charge.” Johnson, 6 Cal. 4th at 18. The

18 state supreme court on direct appeal found harmless the trial court’s state law error in accepting

19 Petitioner’s personal presence waiver, stating that: 20 A capital defendant cannot voluntarily waive his rights under sections 977 and 21 1043 to be present at trial. (Weaver, supra, 26 Cal. 4th at pp. 967–968, 111 Cal.Rptr.2d 2, 29 P.3d 103; Jackson, supra, 13 Cal. 4th at p. 1210, 56 22 Cal.Rptr.2d 49, 920 P.2d 1254.) However, permitting defendant to waive those rights was merely statutory error, and thus we should reverse the judgment on 23 this ground only if we conclude the error was prejudicial. (Weaver, at p. 968, 111 Cal.Rptr.2d 2, 29 P.3d 103; Jackson, at p. 1211, 920 P.2d 1254.) The 24 standard for reviewing error in permitting a defendant to absent himself from the penalty phase of a capital case is whether there is a “ ‘reasonable possibility 25 ’ ” the jury would have reached a different result had the error not occurred. (People v. Hernandez (2003) 30 Cal. 4th 835, 877, 134 Cal.Rptr.2d 602, 69 P.3d 26 446, italics added; People v. Brown (1988) 46 Cal. 3d 432, 448, 250 Cal.Rptr. 604, 758 P.2d 1135.) Weaver and Jackson were also capital cases, and we used 27 the reasonable probability standard in those cases. (Weaver, at p. 968, 111 Cal.Rptr.2d 2, 29 P.3d 103; Jackson, at p. 1211, 56 Cal.Rptr.2d 49, 920 P.2d 28 133 1254.) However, the error in Weaver occurred in the sanity phase of the trial 1 (Weaver, at p. 965, 111 Cal.Rptr.2d 2, 29 P.3d 103), and in the guilt phase in Jackson (Jackson, at p. 1209, 56 Cal.Rptr.2d 49, 920 P.2d 1254). 2 We conclude it is not reasonably possible a result more favorable to defendant 3 would have been reached in the absence of the error. First, the television monitor in the holding room enabled defendant to see and hear the proceedings, 4 and the court made it clear defendant would be brought back into the courtroom the moment defendant decided he wanted to return. Second, the only witness 5 who testified during the penalty phase was the detective who provided the foundation for the admission of the autopsy photographs of the victims. The 6 admissibility of the autopsy photographs had already been vigorously contested by defense counsel, and it is not apparent what value defendant's presence 7 during the detective's testimony would have been to defense counsel. (See Weaver, supra, 26 Cal. 4th at p. 968, 111 Cal.Rptr.2d 2, 29 P.3d 103.) Third, 8 given defendant's professed lack of any desire to receive “sympathy or pity from that jury that convicted me of these crimes,” his demeanor, had he been present 9 in the courtroom, might have undermined his counsel's argument. Finally, the court advised the jury that defendant had exercised his option of not being 10 present, but that he was following the proceedings on a television screen in the holding cell, and that they were not to consider his absence in their 11 deliberations. 12

13 Dickey, 35 Cal. 4th at [923–24.

14 The state supreme court reasonably found harmless error for the reasons stated by the 15 court and those discussed above. Brecht, 507 U.S. at 637. A defendant’s “absence from

16 various court proceedings, even without waiver, may be declared non-prejudicial in situations

17 where his presence does not bear a reasonably substantial relation to the fullness of his

18 opportunity to defend against the charge.” Johnson, 6 Cal. 4th at 18.

19 The state supreme court reasonably could find Petitioner was not denied sufficient 20 opportunity to assist in his penalty phase defense or that he might have raised concerns that

21 could have been addressed by the trial court. As noted, Petitioner stated on the record that he

22 did not want to present mitigation evidence and defense. (RT 5101-02) Even so, the defense

23 team investigated and developed a mitigation defense. Schultz’s decision not to present

24 mitigating evidence was informed by adequate investigation and based upon tactical

25 considerations. Petitioner had access to audio and video feed of the penalty trial from a room

26 adjacent to the courtroom and was free to consult with Schultz and return to the courtroom at 27 any time.

28 134 1 Petitioner’s suggestion his waiver of presence was related to the trial court’s refusal to 2 convene a Marsden hearing (see Doc. No. 51-1 ¶ 675) is inference unsupported by the record,

3 and fails for reasons discussed in claims II(I) and V above.

4 iii. Conclusions 5 The California Supreme Court was not unreasonable in denying allegations the trial 6 court prejudicially erred by failing to inquire into his competency at the penalty phase and in

7 waiving personal presence at the penalty phase.

8 Accordingly, the California Supreme Court’s rejection of the claims was not contrary 9 to, or an unreasonable application of, clearly established federal law, as determined by the

10 Supreme Court, or an unreasonable determination of facts in light of the evidence presented in

11 the state court proceeding. See 28 U.S.C. § 2254(d).11

12 Claims VI and VII shall be denied. 13 4. Claim IX 14 Petitioner alleges the trial court erred by denying Schultz’s motion to discharge the jury 15 following the emotional outburst in court by Lavelle Garratt, the daughter of victim Marie

16 Caton, following the guilt verdict, violating his rights under Fifth, Sixth, Eighth and Fourteenth

17 Amendments. (Doc. No. 51-1 ¶¶ 683-687.)

18 a. Supplemental Legal Standards 19 Due process requires that the defendant be tried by “a jury capable and willing to 20 decide the case solely on the evidence before it.” Smith v. Phillips, 455 U.S. 209, 217 (1982);

21 see also United States v. Plache, 913 F.2d 1375, 1377-78 (9th Cir. 1990) (“It is well-settled

22 that a single partial juror deprives a defendant of his Sixth Amendment right to a trial by an

23 impartial jury.”).

24 b. State Court Direct and Collateral Review 25 Petitioner presented this claim on direct appeal and it was denied on the merits. Dickey, 26 27 11 Petitioner’s further allegation that all prior counsel were ineffective for failing to raise these claims fails for the reasons stated. (See Doc. No. 51-1 ¶ 666; see also Doc. No. 142 at 183.) 28 135 1 35 Cal. 4th at 916-17.

2 c. Analysis 3 i. Trial Court Error 4 Petitioner revisits allegations (of ineffective assistance of counsel) in claim II(U) ante, 5 relating to the outburst in court by Ms. Garratt and other family members following rendition

6 of the guilt phase verdicts, here recast as claimed trial court error. (See Doc. No. 142 at 194.)

7 As discussed above, following reading of the guilt phase verdicts relatives of victim 8 Marie Caton reacted in support of the conviction. Ms. Garrett stated “yes, yes” and other

9 family members embraced, cried, and whispered amongst themselves. (RT 5051.) The trial

10 court immediately directed Ms. Garratt to “keep it down, ma’am.” (RT 5053, 5051.) 11 Prosecutor Hahus told Ms. Garratt to “remain silent.” (RT 5053.)

12 Schultz moved for discharge of the jury four days later relying upon Penal Code 13 190.4(c) and Booth v. Maryland, 482 U.S. 496 (1987). (See CT 470-71.) The trial court

14 denied the motion (see CT 470-71), proposing instead to “instruct the jury to disregard any

15 display by any spectators in the courtroom and any – the statement made by any spectator in

16 the courtroom when the verdicts were being read, unless the defendant does not want me to do

17 that.” (Doc. No. 142 at 195, citing RT 5072-73.)

18 Schultz did not accept the trial court’s offer of an ameliorative admonition that the jury 19 “disregard any display by any spectators in the courtroom and any – the statement made by any 20 spectator in the courtroom when the verdicts were being read….” (RT 5072.) Petitioner

21 observes that no such admonition was given. (See Doc. No. 142 at 195.)

22 As discussed in claim II(U) above, the state supreme court denied the claim (couched as 23 ineffective assistance of counsel), stating that:

24 At the conclusion of the guilt phase of the trial, when the jury's verdicts and 25 findings were read in open court, Lavelle Garratt, the daughter of victim Marie Caton, said in a loud voice, “Yes, yes.” The court admonished her to “[k]eep it 26 down, ma'am”; and the prosecutor also loudly instructed her to remain silent. Other members of Mrs. Caton's family embraced one another, cried, and 27 whispered among themselves. 28 136 The following week defense counsel moved to discharge the jury on the ground 1 it had been exposed to constitutionally impermissible victim impact evidence under Booth v. Maryland (1987) 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440. 2 In denying the motion, the court expressed doubt as to whether any prejudice occurred, but offered to admonish the jury to disregard the outburst and not let it 3 influence their penalty deliberations, unless the defense preferred that an admonition not be given, as it might serve to highlight the incident in the minds 4 of the jurors. Defense counsel said he would have to decide whether to ask for such an admonition. As it turned out, no admonition was given. While the 5 record does not reflect whether defense counsel expressly declined the court's offer, it strongly suggests he did. The next day the court stated that “some 6 matters had been discussed in chambers and we've gone over” the penalty phase instructions. After the court listed the instructions it intended to give, it asked 7 whether either counsel wanted other instructions. Defense counsel stated, “I have no other requests.” Earlier, defense counsel had stated he felt no 8 admonition could be effective—that the proverbial bell could not be unrung. 9 Assuming arguendo an admonition would have cured any prejudice, defendant contends his trial counsel was ineffective in failing to request an admonition. 10 Again, we disagree. 11 The brief, spontaneous reaction of the members of Marie Caton's family to the jury verdicts did not constitute victim impact evidence of the sort proscribed in 12 Booth v. Maryland, supra, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440. Moreover, while this case has been on appeal, the United States Supreme Court, 13 partially overruling Booth and South Carolina v. Gathers (1989) 490 U.S. 805, 109 S.Ct. 2207, 104 L.Ed.2d 876, held that “[i]n a capital trial, evidence 14 showing the direct impact of the defendant's acts on the victims' friends and family is not barred by the Eighth or Fourteenth Amendments to the federal 15 Constitution. (Payne v. Tennessee (1991) 501 U.S. 808, 825–827 [111 S.Ct. 2597, 115 L.Ed.2d 720] [(Payne )].)” (People v. Pollock (2004) 32 Cal. 4th 16 1153, 1180, 13 Cal.Rptr.3d 34, 89 P.3d 353.) Payne applies retroactively. (People v. Clair (1992) 2 Cal. 4th 629, 672, 7 Cal.Rptr.2d 564, 828 P.2d 705 17 (Clair ).) 18 “Under California law, victim impact evidence is admissible at the penalty phase under section 190.3, factor (a), as a circumstance of the crime, provided 19 the evidence is not so inflammatory as to elicit from the jury an irrational or emotional response untethered to the facts of the case. (People v. Boyette, supra, 20 29 Cal. 4th at p. 444 [127 Cal.Rptr.2d 544, 58 P.3d 391]; People v. Edwards (1991) 54 Cal. 3d 787, 835–836 [1 Cal.Rptr.2d 696, 819 P.2d 436].)” (People v. 21 Pollock, supra, 32 Cal. 4th at p. 1180, 13 Cal.Rptr.3d 34, 89 P.3d 353.) It would come as no surprise to a jury that a victim's family was anguished by her 22 murder, relieved that part of the trial was over, and satisfied with the guilty verdicts. The relatively muted reaction of Marie Caton's family to the jury 23 verdicts was certainly not “so inflammatory as to elicit from the jury an irrational or emotional response untethered to the facts of the case.” (Ibid.) 24 Finally, defense counsel may have made a reasonable tactical decision that an admonition was not, on balance, desirable, because it would remind the jury of 25 the incident. 26 27 Dickey, 35 Cal. 4th at 916–17.

28 137 1 Petitioner concedes Schultz decided not to revisit the issue for fear of reminding the 2 jury of the outburst. (Doc. No. 142 at 195.) Still, he argues there was good cause for the trial

3 court to discharge the jury under Penal Code section 190.4(c) because Ms. Garratt’s outburst

4 was entirely audible, inflammatory, unduly prejudicial and prevented the jury from performing

5 its function – making his penalty phase trial unfair. (Doc. No. 142 at 194-95.) He emphasizes

6 the gravity of the outburst by pointing out the trial court conceded its failure to admonish

7 spectators not to display emotions during the reading of the verdicts. (See RT 5051.) He

8 argues the outburst was akin to unconfronted evidence.

9 Petitioner supports these arguments by pointing out that Ms. Garratt’s private reward 10 fund instigated his prosecution and that she was a key witness such that her outburst served to

11 bias jurors in favor of victims at the penalty phase. (RT 4238, 4308; Doc. No. 142 at 196-97.)

12 However, the state supreme court was not unreasonable in denying the claimed trial 13 court error on grounds the outburst was not so inflammatory as to make the subsequent penalty

14 proceeding unfair. See Musladin, 549 U.S. at 77 (observing that lack of clearly established

15 Supreme Court holdings regarding the potentially prejudicial effect of spectators’ courtroom

16 conduct). A reasonable juror might anticipate that members of the victim’s family would

17 support a guilt verdict. Moreover, the outburst occurred between the guilt trial and the penalty

18 trial, and was not evidence considered by the jury at the penalty phase. The record shows the

19 outburst was brief and immediately rebuked by the trial court and the prosecutor. 20 Although the habeas proffered declaration of Schultz was not before the state supreme 21 court on direct appeal, his reasoning in not requesting the admonition, i.e. to avoid again

22 ringing the bell, was otherwise apparent in the noted record. (See RT 5052-53); Dickey, 35

23 Cal. 4th at 916-17. The state supreme court reasonably could have viewed Schultz’s decision

24 to be a matter of trial tactics given the admonition would have re-directed the jurors’ attention

25 to an event no longer in the forefront, an event that occurred days before.

26 Additionally, Petitioner has not demonstrated his right to confront evidence was 27 implicated must less violated. He has not shown the penalty phase outburst constituted

28 138 1 evidence against him or impeded his ability to present a complete penalty defense. See

2 Maryland v. Craig, 497 U.S. 836, 845 (1990) (“The central concern of the Confrontation

3 Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it

4 to rigorous testing in the context of an adversary proceeding before the trier of fact.”); Crane v.

5 Kentucky, 476 U.S. 683, 690 (1986) (citing California v. Trombetta, 467 U.S. 479, 485 (1984))

6 (the Constitution guarantees criminal defendants “a meaningful opportunity to present a

7 complete defense.”).

8 Even if arguendo the outburst was evidentiary in nature, Petitioner has not explained 9 how the non-testimonial outburst could have been effectively confronted at the penalty trial.12

10 A reasonable juror could find it unremarkable that a murder victim’s child might agree with a

11 verdict for the prosecution, such constituting evidence of specific harm caused by the crime as

12 countenanced by the Supreme Court in Payne. 501 U.S. at 825.

13 Petitioner does not support with facts in the record his further argument that 14 “estrange[ment]” from Schultz left [Petitioner] unable to “evaluat[e]” the trial court’s

15 admonition offer, leaving the jury unable to perform its function. (See Doc. No. 142 at 196.)

16 Nor does he support with facts in the record his further argument that he was denied effective

17 assistance of counsel in this regard, actually or constructively. (See discussion of claims II(I),

18 II(U) and III(B) above.)

19 ii. Any Error was Harmless 20 Petitioner argues the trial court’s errant failure to discharge the jury raised a reasonable 21 probability of a different sentencing outcome and thus was more than harmless under Brecht.

22 He argues the showing in aggravation was so minimal that Ms. Garratt’s outburst must have

23 adversely affected the sentencing determination. (Doc. No. 51-1 ¶ 686; see also Doc. No. 142

24 at 198-99.) He points to Ms. Garratt’s pivotal role in the trial proceedings and that the

25 outburst was unrebutted and unconfronted. (Doc. No. 142 at 196-97.) He suggests the

26 outburst was not “relatively muted’, but instead significant and load. (See RT 5051.) 27

28 12 See n.8, ante. 139 1 Petitioner goes on to argue that even the pro death jury assembled by Schultz (see Doc. 2 No. 135 at 21-29 [regarding guilt phase claim I]) must have found the sentencing determination

3 to be a close call because they deliberated five hours over two days during the course of which

4 they submitted questions to the trial court and had testimony re-read. (CT 477-480.) This

5 even though the prosecution presented only minimal evidence in aggravation (i.e. the brief

6 testimony by detective Douglas Stokes authenticating autopsy photos [see RT 5126-33; CT

7 478-79], the five autopsy photographs (id.), and a stipulation that Petitioner committed a

8 burglary in 1983 (CT 479)), and the defense presented no mitigation evidence (RT 5134).

9 Petitioner observes the parties’ penalty phase presentations together lasted a mere sixteen

10 minutes. (CT 478.)

11 However, the state supreme court was not unreasonable in rejecting the claimed trial 12 court error. The outburst occurred four days prior to the start of the penalty trial; appeared to

13 span no more than a few seconds; was relatively subdued; and was quickly condemned by the

14 trial court and the prosecutor. To the extent the outburst reflected the impact of Petitioner’s

15 crime, the jury could properly have considered such as an aggravating circumstance of the

16 crime. See Payne, 501 U.S. at 825-827.

17 Furthermore, Petitioner merely surmises prejudice from the alleged trial court error. 18 The jury was instructed at the penalty phase that it should not be influenced by “bias nor

19 prejudice against the defendant, nor swayed by public opinion or public feelings.” (CT 486.) 20 Petitioner’s jurors presumably understood and followed their instructions. Weeks, 528 U.S. at

21 234; see also Boyde, 494 U.S. at 381-85; Tan 413 F.3d at 1115.

22 iii. Conclusions 23 The California Supreme Court was not unreasonable in denying allegations the trial 24 court erred by failing to discharge the jury following the outburst by victim family members.

25 Accordingly, the California Supreme Court’s rejection of this claim was not contrary 26 to, or an unreasonable application of, clearly established federal law, or an unreasonable 27 determination of the facts in light of the evidence presented in the state court proceeding. 28

28 140 1 U.S.C. § 2254(d).

2 Claim IX shall be denied. 3 5. Claim X 4 Petitioner alleges the trial court erred by admitting, over Schultz’s objection, post- 5 mortem (i.e. autopsy) photos of the victims, violating his rights under Fifth, Sixth, Eighth and

6 Fourteenth Amendments. (Doc. No. 51-1 ¶¶ 688-693.)

7 a. Supplemental Legal Standards 8 Trial court error violates due process where it renders the resulting criminal trial 9 fundamentally unfair. Chambers, 410 U.S. at 294, 303. See also Jammal v. Van de Kamp, 926

10 F.2d 918, 919 (9th Cir. 1991) (due process claim can be stated where graphic photos of victims

11 make the trial fundamentally unfair).

12 b. State Court Direct and Collateral Review 13 Petitioner presented this claim on direct appeal and it was denied on the merits. 14 (Dickey, 35 Cal. 4th at 924-25.)

15 c. Analysis 16 i. Trial Court Error 17 Petitioner argues the trial court erred in admitting as aggravating circumstances of the 18 crime (under Penal Code section 190.3(a)) five autopsy photos of victims Freiri and Caton.

19 The trial court admitted the photos over the objection of Schultz on grounds that: (i) the photos 20 were not relevant to Petitioner’s conviction as a mere aider and abetter who did not participate

21 in the killings, and (ii) the photos were more prejudicial than probative under Evidence Code

22 section 352. (Doc. No. 51-1 ¶¶ 688, 691; see also Doc. No. 142 at 199; RT 5085-98.)

23 Particularly, Petitioner argues the photos made his trial unfair because they show 24 beating and stabbing injuries inflicted not by him, but rather by R.C., the actual killer. (See RT

25 5091-92.) He argues the photos caused the jury to punish him for the brutality inflicted by

26 R.C. (Doc. No. 142 at 201, citing CT 486.) 27 The trial court found the circumstances of the crime including photographs not 28 141 1 admitted at the guilt phase to be equally admissible against the aider and abettor and his co-

2 conspirator. (RT 5093-94.)

3 The trial court also found the photos relevant to the circumstances of the crime, 4 showing the nature and seriousness of the wounds. (RT 5098-99.) The trial court found the

5 photos prejudicial, but concluded their probative value outweighed the prejudice. (RT 5098.)

6 The trial court did direct that one of the photos be modified to “crop” out non-probative or

7 prejudicial matter. (Id.)

8 The California Supreme Court considered and denied the claim on direct appeal, stating 9 that:

10 “We repeatedly have determined that photographs of victims' bodies may be 11 admissible at the penalty phase to demonstrate graphically the circumstances of the crime, a factor relevant to the issues of aggravation and penalty. (E.g., 12 People v. Lucas [(1995)] 12 Cal. 4th [415,] 490 [48 Cal.Rptr.2d 525, 907 P.2d 373]; People v. Sanchez (1995) 12 Cal. 4th 1, 63–65 [47 Cal.Rptr.2d 843, 906 13 P.2d 1129]; People v. Medina (1995) 11 Cal. 4th 694, 775 [47 Cal.Rptr.2d 165, 906 P.2d 2]; People v. Wader (1993) 5 Cal. 4th 610, 655 [20 Cal.Rptr.2d 788, 14 854 P.2d 80]; People v. Raley (1992) 2 Cal. 4th 870, 914 [8 Cal.Rptr.2d 678, 830 P.2d 712]; People v. Hardy (1992) 2 Cal. 4th 86, 199–200 [5 Cal.Rptr.2d 15 796, 825 P.2d 781].)” (People v. Smithey (1999) 20 Cal. 4th 936, 990, 86 Cal.Rptr.2d 243, 978 P.2d 1171.) 16 Defendant contends the photographs should not have been admitted against him 17 because he was merely an aider and abettor. However, we have upheld the admission of autopsy photographs in the penalty phase of the trial of a 18 defendant convicted on an aiding and abetting theory. (People v. Sanchez, supra, 12 Cal. 4th at pp. 63–65, 47 Cal.Rptr.2d 843, 906 P.2d 1129.) Defendant 19 notes there was more evidence in Sanchez of the defendant's direct involvement in the murderous acts. (Id. at p. 22, 47 Cal.Rptr.2d 843, 906 P.2d 1129.) That is 20 beside the point. The “circumstances of the crime of which the defendant was convicted in the present proceeding” (§ 190.3, factor (a)), which include the 21 brutality of its commission, and whether the defendant's “participation in the commission of the offense was relatively minor” (§ 190.3, factor (j)) are 22 separate sentencing factors. The circumstances of the offense here, as evidenced by the photographs of the victims, were arguably an aggravating factor, and the 23 prosecutor made that argument. The nature of defendant's involvement, that he was an aider and abettor, was arguably a mitigating factor, and defense counsel 24 made that argument. The jury was properly instructed. No error appears. 25 Dickey, 35 Cal. 4th at 924–25.

26 The California Supreme Court reasonably found the trial court did not abuse its 27 discretion in admitting this evidence. See Wood v. Alaska, 957 F.2d 1544, 1550 (9th Cir. 1992)

28 142 1 (trial judges have broad discretion both to determine relevance and to determine whether

2 prejudicial effect or other concerns outweigh the probative value of the evidence).

3 “[T]he Constitution leaves to the judges who must make these decisions ‘wide latitude’ 4 to exclude evidence that is ‘repetitive …, only marginally relevant’ or poses an undue risk of

5 ‘harassment, prejudice, [or] confusion of the issues.’” Crane, 476 U.S. at 689-90 (quoting

6 Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)); see also Taylor v. Illinois, 484 U.S. 400,

7 410-11 (1988) (defendant’s right to present evidence is not absolute for defendant must comply

8 with established rules of evidence and procedure). In California, the trial court enjoys “wide

9 discretion” in determining the relevancy of evidence. People v. Green, 27 Cal. 3d 1, 19

10 (1980), abrogated on other grounds by People v. Martinez, 20 Cal. 4th 225 (1999).

11 The “admissibility of evidence in a state trial is matter of state law,” which is binding 12 on the federal court unless there is a due process violation. Clark, 16 F.3d at 963-64. Only if

13 no permissible inferences can be drawn from admitted evidence will due process be violated.

14 Jammal, 926 F.2d at 920; cf. McGuire, 502 U.S. at 67 (Ninth Circuit erroneously “relied in part

15 on its conclusion that the [prior injury] evidence was ‘incorrectly admitted . . . pursuant to

16 California law’ in ruling that McGuire’s due process rights were violated by admission of the

17 evidence.”).

18 Here, the trial court found the photos to be relevant and more probative than prejudicial 19 evidence of the circumstances of the crime. (RT 5098.) As that court noted, the autopsy 20 photos depicted injuries sustained in the attack that led to death and capital charges; evidence

21 of the circumstances surrounding the crime in which Petitioner participated as an aider and

22 abettor of felony murder. See Villafuerte v. Stewart, 111 F.3d 616, 627 (9th Cir. 1997) (photos

23 depicting blood at crime scene and victim injuries relevant to crimes charged are admissible).

24 The state supreme court reasonably could find as a matter of state law that the autopsy 25 photos were relevant and more probative than prejudicial evidence of the circumstances of the

26 charged crimes. As was the case above in the discussion of claim IX, Petitioner merely 27 surmises the photos must have been more prejudicial than probative given the summary nature

28 143 1 of his penalty proceedings and sparse evidence admitted thereat. He fails to discuss and give

2 weight to the aggravating and highly probative facts from the guilt phase surrounding his

3 participation in the capital crime, reflected in the photos. (See e.g. Doc. 135 discussion

4 denying guilt claims XXVI & XXVIII.) Photographs that are relevant to charged crimes are

5 generally admissible. Villafuerte, 111 F.3d 627. In California, “photographs which disclose

6 the manner in which the victim was wounded are relevant on the issues of malice and

7 aggravation of the crime and the penalty.” People v. Thompson, 50 Cal. 3d 134, 182 (1990).

8 ii. Any Error was Harmless 9 Assuming arguendo the photos were errantly admitted, the state supreme court 10 reasonably could find Petitioner has not shown more than harmless error, i.e. an error that

11 substantially influenced the sentencing outcome. Brecht, 507 U.S. at 637-39.

12 Petitioner argues the alleged error must have been more than harmless given the scant 13 showing in aggravation; the brevity of penalty proceedings; and the relative length of penalty

14 deliberations. (Doc. No. 142 at 201-02; see also Doc. No. 144 at 48, citing 5098; RT 5126-33;

15 CT 477-480.)

16 Still, the guilt phase evidence of the crimes and surrounding circumstances and 17 Petitioner’s involvement therein was before the penalty phase jury. The photos reasonably

18 could be seen as relevant and probative evidence depicting the victims in circumstances

19 already known to the jury; circumstances relating to Petitioner’s guilt phase defense that he 20 merely aided and abetted a burglary gone wrong and that it was R.C. who committed the

21 killings in the photos.

22 The jury was properly instructed on weighing aggravating and mitigating factors and 23 presumably understood and followed their instructions. (See CT 498-99, 502-03; see also the

24 discussion of claims XII(E, F), XXV(E), post.)

25 iii. Conclusions 26 The California Supreme Court was not unreasonable in denying allegations the trial 27 court erred by admitting over objection the post-mortem photos of the victims.

28 144 1 Accordingly, the California Supreme Court’s rejection of this claim was not contrary 2 to, or an unreasonable application of, clearly established federal law, or an unreasonable

3 determination of the facts in light of the evidence presented in the state court proceeding. 28

5 Claim X shall be denied. 6 6. Claim XI 7 Petitioner alleges the trial court erred by denying his motion for modification of the 8 verdict, violating his rights under Fifth, Sixth, Eighth and Fourteenth Amendments. (Doc. No.

9 51-1 ¶¶ 694-700.)

10 a. Supplemental Legal Standards 11 Trial court error violates due process where it renders the resulting criminal trial 12 fundamentally unfair. Chambers, 410 U.S. at 294, 303; Jammal, 926 F.2d at 919.

13 b. State Court Direct and Collateral Review 14 Petitioner presented this claim on direct appeal and it was denied on the merits. Dickey, 15 35 Cal. 4th at 932-33.

16 c. Analysis 17 i. Trial Court Error 18 Petitioner argues the trial court denied him due process because it “failed to apply the 19 proper [i.e. independent] standard of review, failed to state reasons for its findings and ruling, 20 failed to consider important mitigating circumstances, and gave undue weight to claimed

21 aggravating circumstances.” (Doc. No. 51-1 ¶ 694; see also Doc. No. 142 at 202-03, citing

22 Penal Code § 190.4(e)); see also Hicks, 447 U.S. at 346.

23 Appellate review of California’s capital cases is authorized by California Penal Code 24 sections 190.4(e) and 1239(b). Section 190.4 provides an automatic application for

25 modification of a verdict imposing the death penalty, by which the trial judge reviews the

26 evidence and reweighs the section 190.3 aggravating and mitigating circumstances before 27 imposing sentence based on the jury’s verdict.

28 145 1 Denial of modification of a verdict of death is reviewed on the automatic appeal 2 pursuant to section 1293(b). Such review includes the “evidence relied on by the [trial] judge.”

3 Pulley, 465 U.S. at 53 (quoting People v. Frierson, 25 Cal. 3d 142, 179 (1979)) (“the statutory

4 requirements that the jury specify the special circumstances which permit imposition of the

5 death penalty, and that the trial judge specify the reasons for denying the modification of the

6 death penalty, serve to assure thoughtful and effective appellate review, focusing upon the

7 circumstances present in each particular case.”).

8 At the time of Petitioner’s trial, section 1239(b) provided, “[w]hen upon any plea a 9 judgment of death is rendered, an appeal is automatically taken by the defendant without any

10 action by him or his counsel.” Even where defendant’s counsel takes no action, the California

11 Supreme Court has a duty to examine the complete trial record to “ascertain[] whether

12 defendant was given a fair trial.” People v. Perry, 14 Cal. 2d 387, 392 (1939).

13 Aside from the state statutory duty to examine the complete trial record for fairness and 14 the federal constitutional requirement that an appeal be available to indigent appellants, there

15 are no obligations placed on the California Supreme Court that could cause a violation of an

16 appellant’s federal constitutional rights. Sections 190.4(e) and 1239(b), and the cases

17 construing them, provide the mechanism for meaningful appellate review.

18 The California Supreme Court denied this claim, stating that: 19 Defendant contends the trial court, in ruling on the automatic motion to modify 20 the verdict (§ 190.4, subd. (e)), failed to apply the proper standard, properly consider the aggravating and mitigating factors, adequately state the reasons for 21 its findings, or direct the clerk to record its reasons in the minutes. Only the last point has merit, and the error with regard to it was not, we conclude, prejudicial. 22 In ruling upon an automatic motion to modify the verdict under section 190.4, 23 subdivision (e), the trial court “shall review the evidence, consider, take into account, and be guided by the aggravating and mitigating circumstances 24 referred to in Section 190.3, and shall make a determination as to whether the jury's findings and verdicts that the aggravating circumstances outweigh the 25 mitigating circumstances are contrary to law or the evidence presented. The judge shall state on the record the reasons for his findings. [¶] The judge shall 26 set forth the reasons for his ruling on the application and direct that they be entered on the Clerk's minutes.” 27 Section 190.4, subdivision (e) requires a court ruling upon a motion for 28 146 modification to reweigh independently the evidence of aggravating and 1 mitigating circumstances and then determine whether, in its independent judgment, the weight of the evidence supports the jury's verdict. (Catlin, supra, 2 26 Cal. 4th at p. 177, 109 Cal.Rptr.2d 31, 26 P.3d 357; People v. Crittenden (1994) 9 Cal. 4th 83, 150, 36 Cal.Rptr.2d 474, 885 P.2d 887.) 3 Defendant contends the court erroneously applied a deferential standard of 4 review appropriate to appellate proceedings. To the contrary, the court expressly stated, “I do understand and agree that the Court must use its independent 5 judgment in reweighing the evidence of mitigating and aggravating circumstances in determining what the penalty ought to be in this case and 6 whether or not this Court agrees with the jury's verdict.” 7 And contrary to defendant's claims, the court carefully reviewed the evidence bearing on each of the aggravating and mitigating factors and clearly explained 8 why it found the aggravating factors substantially outweighed the mitigating factors. Defense counsel urged defendant's culpability was only that of an aider 9 and abettor. The court agreed Cullumber was the “major culprit,” but noted the evidence showed defendant's role was “not minor.” Defense counsel brought up 10 defendant's “drug use.” However, there was no evidence, the court observed, defendant was under the influence of drugs at the time of the offenses. Defense 11 counsel noted the remorse defendant had shown when confessing to Gail Goldman. However, the court observed that defendant's expression of remorse 12 on that occasion was triggered by the television story concerning the crime, and that he had shown no remorse immediately after the murders, but rather had 13 grandly purchased drugs for all of his housemates with the money he had stolen. The circumstances of the crime—that defendant participated in the brutal 14 murders of his elderly victims to obtain money to buy drugs—was, the court stated, the most significant aggravating factor. 15 Apparently, the court did neglect to direct the clerk to enter the reasons for its 16 ruling on the application in the minutes. However, the reporter's transcript provides an entirely adequate basis for review, and so it is not reasonably 17 possible that this failure to comply with a statutory directive prejudiced defendant. 18

19 Dickey, 35 Cal. 4th at 932–33. That court reasonably denied the claim, as follows. 20 Standard of Review 21 Petitioner argues the trial court failed to “independently” reweigh the evidence of 22 aggravating and mitigating circumstances and determine whether the weight of the evidence

23 supports the jury verdict. (Doc. No. 51-1 ¶ 697-698, citing People v. Burgener, 29 Cal. 4th

24 833, 890 (2003) (section 190.4(e) requires the judge make an independent determination

25 whether imposition of the death penalty upon the defendant is proper in light of the relevant

26 evidence and applicable law”); see also Doc. No. 142 at 203, citing Penal Code § 190.4(e).) 27 He argues the prosecution asserted and the trial court used an improper standard of review, i.e.,

28 147 1 a more deferential standard of “substantial evidence.” (Id. at 204.) He argues “the trail court’s

2 assessment of aggravating versus mitigating factors was being done through the eyes of the

3 jury, not independently.” (Doc. No. 144 at 50.)

4 However, Petitioner merely surmises the trial court failed to independently reweigh the 5 evidence of aggravating and mitigating circumstances and determine whether, in the judge’s

6 independent judgment, the weight of the evidence supported the jury’s verdict. He points to

7 argument by the prosecution which he contends advocated that the section 190.4 standard of

8 review was a more deferential “substantial evidence” standard. (See RT February 21, 1992 at

9 14, 20-21.) He argues that although the trial court recited the proper standard, it did not

10 understand and apply that standard. (See Doc. No. 144 at 50.) He also faults the trial court for

11 failing to state the reasons for its findings on the record. Penal Code § 190.4(e).

12 Petitioner argues the trial court’s error led it to “[give] undue weight to factor (a) 13 aggravating evidence [primarily the conduct of R.C.] and failed properly to consider available

14 mitigating evidence [of Petitioner’s minor participation, remorse and drug use], thereby

15 depriving Petitioner of the individualized assessment of the appropriateness of the death

16 penalty required by the Eighth Amendment.” (Doc. No. 144 at 51, citing RT Feb. 21, 1992 at

17 24-25.)

18 Petitioner relies upon inference arising from his reargument of Petitioner’s limited role 19 as an aider and abettor of felony murder. According to Petitioner, the trial court unduly 20 credited aggravating circumstances of the crimes directly attributable to perpetrator R.C. and

21 discounted the mitigating circumstances and Petitioner’s minor involvement in the crimes.

22 (Doc. No. 142 at 206.)

23 Still, as the state supreme court noted, the trial court considered the proper standard by 24 stating “[I] do understand and agree that the Court must use its independent judgment in

25 reweighing the evidence of mitigating and aggravating circumstances in determining what the

26 penalty ought to be in this case and whether or not this Court agrees with the jury's verdict.’” 27 (RT February 21, 1992 at 24; see also Dickey, 35 Cal. 4 th at 932-33. The trial court proceeded

28 148 1 to state on the record its reasoning regarding the sentencing factors in the context of the

2 aggravating and mitigating evidence before the jury. (RT February 21, 1992 at 24-30.)

3 The trial court discussed sentencing factor “a” “circumstances of the crime of which the 4 Defendant was convicted in this proceeding.” (Id. at 24.) That court noted that Petitioner and

5 R.C. “got together for the purpose of burglarizing the home of Mrs. Caton” (id. at 25), that the

6 victims were particularly vulnerable (id. at 26), that the killings were brutal, and the injuries

7 inflicted were severe (id. at 26).

8 The trial court discussed sentencing factor “j,” “whether or not the Defendant was an 9 accomplice to the offense and his participation in the offense was relatively minor.” (Id. at 28.)

10 That court considered that Petitioner was tried as an aider and abettor of felony murder; that

11 “[Petitioner] was not the principal culprit in the case; [R.C.] was and that is something that I

12 accept; that “all the evidence points to [R.C.] being the major culprit.” (Id. at 28-29.) Even

13 so, the trial court noted that Petitioner’s participation in the crime “was not minor”, that “he

14 was seen . . . cutting a piece of cord . . . similar to that . . . found around the neck of Mr.

15 Freiri” and that Petitioner “shared in the ill-gotten gains from that burglary and robbery.” (Id.)

16 The trial court found that “[h]aving considered the factors in aggravation and 17 mitigation, it is clear . . . the factors in aggravation do substantially outweigh the mitigating

18 factors.” (Id. at 30.)

19 For the reasons stated, the state supreme court was not unreasonable in rejecting 20 Petitioner’s asserted improper weighing of sentencing factors.

21 Written Statement of Findings 22 Petitioner faults the trial court to the extent the clerk’s minutes of the proceedings did 23 not include the reasons for its ruling, but stated only that the matter was “argued, submitted,

24 and denied.” (See CT 609.)

25 The California procedure requires the trial judge to provide a written statement 26 upholding or overturning the jury’s verdict. Penal Code § 190.4(e). The California procedure 27 was approved by the Supreme Court in Pulley v. Harris, where it was stated:

28 149 1 If the jury finds the defendant guilty of first-degree murder and finds at least 2 one special circumstance, the trial proceeds to a second phase to determine the appropriate penalty. Additional evidence may be offered and the jury is given a 3 list of relevant factors. § 190.3. “After having heard all the evidence, the trier of fact shall consider, take into account and be guided by the aggravating and 4 mitigating circumstances referred to in this section, and shall determine whether the penalty shall be death or life imprisonment without the possibility of 5 parole.” Ibid. If the jury returns a verdict of death, the defendant is deemed to move to modify the verdict. § 190.4(e). The trial judge then reviews the 6 evidence and, in light of the statutory factors, makes an “independent determination as to whether the weight of the evidence supports the jury’s 7 findings and verdicts.” Ibid. The judge is required to state on the record the reasons for his findings. Ibid. If the trial judge denies the motion for 8 modification, there is an automatic appeal. §§ 190.4(e), 1239(b). The statute does not require comparative proportionality review or otherwise describe the 9 nature of the appeal. [Footnote omitted.] It does state that the trial judge’s refusal to modify the sentence “shall be reviewed.” § 190.4(e). This would seem 10 to include review of the evidence relied on by the judge. As the California Supreme Court has said, “the statutory requirements that the jury specify the 11 special circumstances which permit imposition of the death penalty, and that the trial judge specify his reasons for denying modification of the death penalty, 12 serve to assure thoughtful and effective appellate review, focusing upon the circumstances present in each particular case.” People v. Frierson, 25 Cal. 3d 13 142, 179, 158 Cal. Rptr. 281, 302, 599 P.2d 587, 609 (1979)…. 14 The jury’s “discretion is suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.” Gregg, 428 U.S. at 189, 96 S.Ct., at 15 2932. Its decision is reviewed by the trial judge and the California Supreme Court. On its face, this system … cannot be successfully challenged under 16 Furman and our subsequent cases. 17 465 U.S. at 51-53.

18 All that is federally required is an “adequate basis for appellate review.” Id. In 19 California, the trial court’s express reasons for its findings in ruling on the automatic motion 20 for modification provide the “adequate basis” for appellate review. Id.; see Diaz, 3 Cal. 4th at

21 571-573. Nothing more is constitutionally required and Petitioner cannot point to any clearly

22 established Supreme Court precedent stating otherwise. Williams, 52 F.3d, at 1484

23 (California’s statute “ensures meaningful appellate review”) (citing Brown, 479 U.S. at 543);

24 Bonin v. Vasquez, 794 F. Supp. 957, 987-88 (C.D. Cal. 1992), aff’d sub nom. Bonin v.

25 Calderon, 59 F.3d 815 (9th Cir. 1995) (the trial judge’s determinations on the record pursuant

26 to section 190.4(e) provide ample basis for appellate review). 27 Here, Petitioner correctly notes the trial court failed to make a clerk’s record of his 28 150 1 findings and rulings on the motion for modification of the verdict. (Doc. No. 142 at 205; CT

2 609.)

3 Even so, the state supreme court reasonably found the trial court’s reasoning as stated 4 in the trial record was sufficient written support for its independent reweighing of the evidence

5 of aggravation and mitigation toward an individualized assessment of the jury’s sentencing

6 determination. (See RT Feb. 21, 1992 at 2-52.) As the state supreme court observed, the

7 “reporter’s transcript provides an entirely adequate basis for review, and so it is not reasonably

8 possible that this failure to comply with a statutory directive prejudiced defendant.” Dickey, 35

9 Cal. 4th at 933.

10 The death penalty is constitutional if it “is imposed only after a determination that the 11 aggravating circumstances outweigh the mitigating circumstances present in the particular

12 crime committed by the particular defendant, or that there are no such mitigating

13 circumstances.” Blystone, 494 U.S. at 305. To the extent automatic modification under

14 California’s capital sentencing statute was part of the manner by which California fulfills its

15 constitutional duty to tailor and apply its death sentencing scheme in a rational manner, see

16 Pulley, 465 U.S. at 52, the evidentiary record shows the trial court reviewed the verdict,

17 considered and discussed the aggravating and mitigating circumstances and factors and made

18 an individualized determination of whether death was the proper punishment. (See RT Feb. 21,

19 1992 at 2-52; see Turner v. Calderon, 281 F.3d 851, 871 (9th Cir. 2002). 20 The California Supreme Court’s conclusion that the trial court’s review was proper 21 under state law is binding on this Court. Wainwright v. Goode, 464 U.S. 78, 84 (1983).

22 ii. Any Error was Harmless 23 Petitioner argues the trial judge prejudicially erred in reweighing the evidence of 24 aggravating and mitigating circumstances. He argues the trial judge failed to consider

25 important mitigating circumstances and gave undue weight to claimed aggravating

26 circumstances. (Doc. No. 142 at 206.) He points to the trial court’s statement that Penal Code 27 section 190.3(a) factor “circumstances of the crime” factor was most important the jury

28 151 1 considered (Doc. No. 142 at 206, citing RT 24-25 [Feb. 21, 1992]) and argues error given that

2 R.C., not Petitioner, was the actual killer. He argues this error caused the trial court to discount

3 the mitigating effect of Penal Code section 190.3(j) factor “whether or not the defendant was

4 an accomplice to the offense and his participation in the commission of the offense was

5 relatively minor.” (See Doc. No. 142 at 207.)

6 However, the trial court referred to the evidence supporting its findings and rulings on 7 these and the other Penal Code section 190.3 factors. (See RT Feb. 21, 1992 at 2-52.)

8 Petitioner concedes the trial judge “discussed each of the aggravating and mitigating factors

9 listed in Penal Code section 190.3” and “the evidence presented at the penalty phase by each

10 side.” (Doc. No. 142 at 205.)

11 Still, Petitioner faults the trial judge for failing to specifically indicate whether the 12 evidence was interpreted as aggravating or mitigating. (Doc. No. 142 at 205, citing RT 24-31

13 (Feb. 21, 1992).) But the trial court reviewed and analyzed on the record each factor and the

14 evidence offered by the parties and concluded that “the aggravating factors do substantially

15 outweigh the mitigating factors.” (Id.) The state supreme court reasonably was unpersuaded

16 that more is necessary or required.

17 Petitioner argues the trial court improperly discounted mitigating evidence of his 18 remorse under Penal Code section 190.3(k), and his drug use on the day of the murders under

19 Penal Code section 190.3(h). (Doc. No. 142 at 208-09.) But the trial court found “no 20 evidence, at the moment the crime was committed, [that Petitioner] was under the influence of

21 drugs. (RT Feb. 21, 1992 at 27.) That court also observed Petitioner’s absence of remorse in

22 the aftermath of the killings, when he used money taken from the victims to buy and share

23 drugs. (RT Feb. 21, 1992 at 29-30.) The record reflects the trial court’s independent judgment

24 in reviewing and reweighing the evidence relative to these factors and its determination the

25 jury’s findings and verdicts were not contrary to law or the evidence presented. (RT Feb. 21,

26 1992 at 27-28.) Petitioner’s disagreement with the trial court’s findings and ruling is not a 27 basis for error.

28 152 1 Petitioner also argues prejudice from the trial court’s failure to direct that the clerk’s 2 minutes of proceedings include reasons for the court’s ruling. However, the state supreme

3 court reasonably found on direct appeal that “[the] reporter’s transcript provides an entirely

4 adequate basis for review, and so it is not reasonably possible that this failure to comply with a

5 statutory directive prejudiced defendant.” Dickey, 35 Cal. 4th at 933.

6 Petitioner’s further argument that the trial court’s record lacked specificity as to 7 whether evidence was aggravating or mitigating and does not show “thoughtful and effective

8 appellate review” (see Doc. No. 142 at 205) is unpersuasive, for the reasons stated.

9 Even if the state court did err as a matter of state law, such is not alone a basis for 10 federal habeas relief. McGuire, 502 U.S. at 72-73.

11 Petitioner has not demonstrated constitutional error from alleged failure of the trial to 12 adhere to the directive of Penal Code section 190.4(e) that it “review the evidence, consider,

13 take into account, and be guided by the aggravating and mitigating circumstances referred to in

14 Section 190.3, and [ ] make a determination as to whether the jury’s findings and verdicts that

15 the aggravating circumstances outweigh the mitigating circumstances are contrary to law or the

16 evidence presented.”

17 iii. Conclusions 18 The California Supreme Court was not unreasonable in denying allegations the trial 19 court erred by denying Petitioner’s motion for modification of the verdict. 20 Accordingly, the California Supreme Court’s rejection of this claim was not contrary 21 to, or an unreasonable application of, clearly established federal law, or an unreasonable

22 determination of the facts in light of the evidence presented in the state court proceeding. 28

23 U.S.C. § 2254(d).

24 Claim XI shall be denied. 25 7. Claim XII(D) 26 Petitioner alleges the trial court erred by instructing the jury it must return a verdict 27 either for LWOP or death, omitting instruction in the event of a hung jury, violating his rights

28 153 1 under the Fifth, Sixth, Eighth, and Fourteenth Amendments. (Doc. No. 51-1 ¶ 711-713.)

2 a. Supplemental Legal Standards 3 A jury must “not be precluded from considering, as a mitigating factor, any aspect of a 4 defendant’s character or record and any of the circumstances of the offense that the defendant

5 proffers as a basis for a sentence less than death.” Lockett, 438 U.S. at 604.

6 Any error in the state court’s determination of whether state law supported an 7 instruction in this case cannot form the basis for federal habeas relief. See McGuire, 502 U.S.

8 at 71 (“[T]he Due Process Clause does not permit the federal courts to engage in a finely tuned

9 review of the wisdom of state evidentiary rules”).

10 The Supreme Court has stated instead that a claim that a court violated a petitioner’s 11 due process rights by omitting an instruction requires a showing that the error “so infected the

12 entire trial that the resulting conviction violate[d] due process.” Kibbe, 431 U.S. at 154. The

13 burden on petitioner is especially heavy “where ... the alleged error involves the failure to give

14 an instruction.” Clark, 450 F.3d at 904.

15 In evaluating a claim of instructional error, a single instruction is not viewed in 16 isolation, but rather in the context of the overall charge. Spivey, 194 F.3d at 976. “[T]he

17 proper inquiry . . . is whether there is a reasonable likelihood that the jury has applied the

18 challenged instruction” in an unconstitutional manner. Boyde, 494 U.S. at 380.

19 Even if constitutional instructional error has occurred, the federal court must still 20 determine whether petitioner suffered actual prejudice, that is, whether the error “had

21 substantial and injurious effect or influence in determining the jury’s verdict.” Brecht, 507

22 U.S. at 637. A “substantial and injurious effect” means a “reasonable probability” that the jury

23 would have arrived at a different verdict had the instruction been given. Clark, 450 F.3d at

24 916.

25 b. State Court Direct and Collateral Review 26 Petitioner presented this claim in his second state exhaustion petition (Lod. Doc. No. 30 27 at 312-14) which the California Supreme Court denied on the merits and on procedural

28 154 1 grounds (Lod. Doc. No. 31, Order Denying Cal. Exh. Pet., In re Colin Raker Dickey, No.

2 S165302 (May 29, 2012)).

3 c. Analysis 4 i. Trial Court Error 5 Petitioner argues the trial court erred by failing to instruct the jury of the consequences 6 of not reaching a unanimous verdict of either LWOP or death, i.e. that in the event of a hung

7 jury a new penalty phase jury would be empaneled pursuant to Penal Code section 190.4(b).

8 (Doc. No. 51-1 at ¶ 711, citing People v. Huggins, 38 Cal. 4th 175, 186 (2006) (a new jury was

9 empaneled following mistrial); see also Doc. No. 142 at 210, citing RT 5145.)

10 The record shows the jury was instructed that “[i]t is the law of this state that the 11 penalty for a defendant found guilty of murder of the first degree shall be death or confinement

12 in the state prison for life without possibility of parole … you must now determine which of

13 said penalties shall be imposed on [the] defendant.” (CT 485; see also CT 502.)

14 Petitioner complains his jury was instructed that “it must return a verdict of either life 15 or death” (Doc. No. 142 at 210, citing RT 5145), and that “to return a judgment of death, each

16 of you must be persuaded that the aggravating circumstances are so substantial in comparison

17 with the mitigating circumstances that it warrants death instead of life without parole.” (Doc.

18 No. 142 at 211, citing RT 5154.) He argues this instructional error misinformed the jury on its

19 true sentencing options (see Doc. No. 144 at 53) and misled jurors on the consequences of 20 deadlock (Doc. No. 142 at 211, citing Morris v. Woodford, 273 F.3d 826, 842 (9th Cir. 2001)

21 (when penalty phase instructions mislead the jury and evidence suggests that the jury was

22 confused by the instruction, the instruction is constitutionally improper)). He argues the jury

23 should have been instructed that “if unable to reach a verdict, a new jury would be empaneled

24 to try the penalty phase of the case.” (Doc. No. 142 at 211.)

25 Petitioner argues the error created a risk of arbitrary and capricious sentencing that 26 must have been realized here because “record indicates that the jury was not in immediate 27 agreement on imposition of the death penalty” and may have felt forced to reach a verdict or

28 155 1 speculated on the consequences of failing to do so. (Doc. No. 142 at 211-12.)

2 However, the California Supreme Court reasonably could have rejected Petitioner’s 3 claim the penalty instructions were misleading and confusing because they failed to include

4 instruction on state law that a new jury would be empaneled upon inability to reach a

5 unanimous sentencing determination. (Doc. No. 51-1 ¶¶ 711-712; see also Doc. No. 142 at

6 210-11, citing Penal Code 190.4(b).)

7 Petitioner makes no showing that clearly established federal law required instruction on 8 empanelment of a new jury in the event of a failure to reach a sentencing verdict. Rather, the

9 Ninth Circuit has found no constitutional error by a trial court’s refusal to inform the jury of

10 the consequences of deadlock. See Rich v. Calderon, 187 F.3d 1064, 1069 (9th Cir. 1999).

11 This is not a case like Morris, where the jury actually was confused by a misleading instruction

12 and asked the trial court for clarity.

13 Furthermore, Petitioner has not demonstrated his desired instruction was required as a 14 matter of state law. Penal Code section 190.4(b) provides in pertinent part that “[i]f the trier of

15 fact is a jury and has been unable to reach a unanimous verdict as to what the penalty shall be,

16 the court shall dismiss the jury and shall order a new jury impaneled to try the issue as to what

17 the penalty shall be.” This language suggests enpanelment of a new jury represents a

18 contingency to be addressed if at all by the trial court.

19 Petitioner has not demonstrated state law required instruction on deadlock or that 20 empanelment of a new jury was a sentencing option available to his jury under state law. See

21 People v. Memro, 11 Cal. 4th 786, 882 (1995) (a court is not required to educate the jury on the

22 consequences of a deadlock).

23 Notably, the state supreme court considered on direct appeal the trial court’s giving the 24 standard sentencing instructions CALJIC 8.85 and 8.88, which include death or LWOP as the

25 sentencing options available to the jury, and found no error. Dickey, 35 Cal. 4th at 927-31.

26 Whether or not the penalty instructions given by the trial court were a correct statement 27 of California law is not a basis for federal relief. See McGuire, 502 U.S. at 67 (whether some

28 156 1 action violated a state’s law forms “no part” whatsoever [i.e., not a little, not at all] of an

2 inquiry whether that action violated the Constitution); see also Bradshaw v. Richey, 546 U.S.

3 74, 76 (2005) (“a state court’s interpretation of state law ... binds a federal court sitting in

4 federal habeas”); Mitchell, 878 F.2d at 324 (“In the absence of a federal constitutional

5 violation, no relief can be granted even if the instruction given might not have been correct as a

6 matter of state law.”).

7 For the reasons stated, the state supreme court reasonably could have found the alleged 8 instructional error did not result in a failure to guide the jury’s discretion and the risk of

9 arbitrary and capricious action and that Petitioner was not denied due process. (Doc. No. 142

10 at 212, citing Gregg, 428 U.S. at 193.)

11 ii. Any Error was Harmless 12 Petitioner argues the failure to give this instruction was prejudicial. He observes the 13 jury was unable to reach an immediate verdict, deliberating for five hours (CT 477-479), and

14 suggests the jurors must have been confused by the possibility they might be unable to reach a

15 verdict. He concludes that had the jury been properly instructed as to the consequences of

16 deadlock, at least one juror would have held out for LWOP. (See Doc. No. 144 at 54.) But the

17 argument is supported only by speculation.

18 Assuming arguendo that the trial court erred as alleged, the California Supreme Court 19 reasonably could have found that Petitioner had not shown a resulting substantial and injurious 20 effect or influence in the jury’s determination of his verdict. Brecht, 507 U.S. at 62; see also

21 Calderon v. Coleman, 525 U.S. 141, 146-47 (1998) (Brecht harmless error standard applies to

22 instructional error). The jurors were able to return a unanimous verdict on the sentencing

23 alternatives before them. (See CT 477-482.) At no point did the jury indicate an inability to

24 reach a verdict or request instruction thereon. Even if they had, Petitioner has not

25 demonstrated that Penal Code section 190.4(b) is a sentencing option for the jury, for the

26 reasons stated. 27 It follows that the sentencing discretion of Petitioner’s jury was “suitably directed and 28 157 1 limited so as to minimize the risk of wholly arbitrary and capricious action.” Gregg, 428 U.S.

2 at 189. Petitioner has not shown the jury was prevented from considering LWOP and

3 mitigating evidence. Brecht, 507 U.S. at 637; Hedgpeth v. Pulido, 555 U.S. 57, 58 (2008)

4 (Brecht standard applicable to instructional error).

5 iii. Conclusions 6 The California Supreme Court was not unreasonable in denying allegations the trial 7 court prejudicially erred by failing to instruct the jury it must return a verdict either for LWOP

8 or death, omitting instruction in the event of a hung jury.

9 Accordingly, the California Supreme Court’s rejection of this claim was not contrary 10 to, or an unreasonable application of, clearly established federal law, or an unreasonable

11 determination of the facts in light of the evidence presented in the state court proceeding. 28

12 U.S.C. § 2254(d).

13 Claim XII(D) shall be denied. 14 8. Claim XII(E) 15 Petitioner alleges the trial court erred by failing to instruct the jury on the standard for 16 weighing aggravating and mitigating factors, violating his rights under the Fifth, Sixth, Eighth,

17 and Fourteenth Amendments. (Doc. No. 51-1 ¶¶ 714-715.)

18 a. Supplemental Legal Standards 19 See section VII, B, 7, a, ante. 20 b. State Court Direct and Collateral Review 21 Petitioner presented this claim on direct appeal and it was denied on the merits. Dickey, 22 35 Cal. 4th at 927-28.

23 c. Analysis 24 i. Trial Court Error 25 Petitioner argues that CALJIC 8.85, given in this case to instruct jurors on Penal Code 26 section 190.3 factors in aggravation and mitigation (see CT 498-99), is unconstitutionally 27 vague, overbroad and misleading with respect to the manner in which aggravating and

28 158 1 mitigating factors are to be weighed, denying meaningful consideration of all mitigating

2 evidence. (Doc. No. 142 at 212-13, citing Abdul-Kabir v. Quarterman, 550 U.S. 233, 247

3 (2007), citing Lockett, 438 U.S. at 640 (the Eighth and Fourteenth Amendments require that

4 the sentencer, in all but the rarest kind of capital case, not be precluded from considering, as a

5 mitigating factor, any aspect of a defendant's character or record and any of the circumstances

6 of the offense that the defendant proffers as a basis for a sentence less than death); Eddings,

7 455 U.S. at 113-114 (adopting rule in Lockett); see also Doc. No. 144 at 55.)

8 “The standard against which we assess whether jury instructions satisfy the rule of 9 Lockett and Eddings was set forth in Boyde, 494 U.S. 370 (1990).” Johnson, 509 U.S. at 367-

10 68. In Boyde, the Supreme Court held that “there is no . . . constitutional requirement of

11 unfettered sentencing discretion in the jury, and States are free to structure and shape

12 consideration of mitigating evidence ‘in an effort to achieve a more rational and equitable

13 administration of the death penalty.’” 494 U.S. at 377 (quoting Franklin, 487 U.S. at 181).

14 In evaluating the instructions, the “reviewing court must determine ‘whether there is a 15 reasonable likelihood that the jury has applied the challenged instruction in a way that prevents

16 the consideration of constitutionally relevant evidence.’” Johnson, 509 U.S. at 367 (quoting

17 Boyde, 494 U.S. at 380). “[W]e do not engage in a technical parsing of this language of the

18 instructions, but instead approach the instructions in the same way that the jury would—with a

19 commonsense understanding of the instructions in the light of all that has taken place at the 20 trial.” Id. at 368 (quoting Boyde, 494 U.S. at 381). Further, a single instruction “may not be

21 judged in artificial isolation but must be considered in light of the instructions as a whole and

22 the entire trial record.” McGuire, 502 U.S. at 72.

23 The jury was instructed on the Penal Code 190.3 sentencing factors pursuant to the 24 standard CALJIC 8.85 instruction, that:

25 In determining which penalty is to be imposed on defendant, you shall consider 26 all of the evidence which has been received during any part of the trial of this case. You shall consider, take into account and be guided by the following 27 factors, if applicable: 28 159 (a) The circumstances of the crime of which the defendant was convicted in the 1 present proceeding and the existence of any special circumstance[s] found to be true. 2 (b) The presence or absence of criminal activity by the defendant, other than the 3 crime[s] for which the defendant has been tried in the present proceedings, which involved the use or attempted use of force or violence or the express or 4 implied threat to use force or violence. 5 (c) The presence or absence of any prior felony conviction, other than the crimes for which the defendant has been tried in the present proceedings. 6 (d) Whether or not the offense was committed while the defendant was under 7 the influence of extreme mental or emotional disturbance. 8 (e) Whether or not the victim was a participant in the defendant's homicidal conduct or consented to the homicidal act. 9 (f) Whether or not the offense was committed under circumstances which the 10 defendant reasonably believed to be a moral justification or extenuation for his conduct. 11 (g) Whether or not the defendant acted under extreme duress or under the 12 substantial domination of another person. 13 (h) Whether or not at the time of the offense the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the 14 requirements of law was impaired as a result of mental disease or defect or the effects of intoxication. 15 (i) The age of the defendant at the time of the crime. 16 (j) Whether or not the defendant was an accomplice to the offense and his 17 participation in the commission of the offense was relatively minor. 18 (k) Any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime [and any sympathetic or other aspect 19 of the defendant's character or record [that the defendant offers] as a basis for a sentence less than death, whether or not related to the offense for which he is on 20 trial.] You must disregard any jury instruction given to you in the guilt or innocence phase of this trial which conflicts with this principle. 21

22 (CT 498-499; see also RT 5150-5152.)

23 The California Supreme Court considered and denied the claim on direct appeal, stating 24 that:

25 Defendant contends the standard instruction given here with regard to the 26 factors the jury might take into account in determining the penalty (§ 190.3; CALJIC No. 8.85) failed to adequately guide its discretion, in violation of 27 defendant's rights under the Eighth and Fourteenth Amendments to the United States Constitution. 28 160 1 Defendant's various attacks on CALJIC No. 8.85 have been repeatedly rejected by this court, and we conclude he gives us no compelling reason to reconsider 2 our decisions. 3 CALJIC No. 8.85 does not encourage the double-counting of aggravating factors. (People v. Lewis, supra, 25 Cal. 4th at p. 669, 106 Cal.Rptr.2d 629, 22 4 P.3d 392; People v. Ayala (2000) 24 Cal. 4th 243, 288–289, 99 Cal.Rptr.2d 532, 6 P.3d 193.) 5 The federal Constitution does not bar consideration of unadjudicated criminal 6 activity. (Tuilaepa v. California (1994) 512 U.S. 967, 976–977, 114 S.Ct. 2630, 129 L.Ed.2d 750; People v. Marks (2003) 31 Cal. 4th 197, 237, 2 Cal.Rptr.3d 7 252, 72 P.3d 1222; People v. Anderson, supra, 25 Cal. 4th at p. 601, 106 Cal.Rptr.2d 575, 22 P.3d 347.) Moreover, defendant seems to complain the jury 8 was permitted to consider prior criminal activity involving use or attempted use of force, whereas the prosecutor candidly acknowledged to the jury, “There is 9 no evidence at all of any previous violent activity on the part of [defendant].” 10 “[A] reasonable juror would readily have identified” the “emotional disturbance” and “diminished capacity” factors as mitigating. (People v. Benson 11 (1990) 52 Cal. 3d 754, 802, 276 Cal.Rptr. 827, 802 P.2d 330; see People v. Williams (1997) 16 Cal. 4th 153, 268–269, 66 Cal.Rptr.2d 123, 940 P.2d 710; 12 People v. McPeters (1992) 2 Cal. 4th 1148, 1191, 9 Cal.Rptr.2d 834, 832 P.2d 146.) “The presumption that the jurors in this case understood and followed the 13 mitigation instruction supplied to them is not rebutted by empirical assertions to the contrary based on research that is not part of the present record and has not 14 been subject to cross-examination. [Citation.]” (Welch, supra, 20 Cal. 4th at p. 773, 85 Cal.Rptr.2d 203, 976 P.2d 754.)17 15

16 ----------------------------------------FOOTNOTE--------------------- 17 n.17 As here, the defendant in Welch relied upon an article “claiming that interviews with former jurors or with randomly selected subjects show that 18 many of the subjects failed to properly understand the concept of mitigation correctly after they had been given CALJIC No. 8.88. [Citations.]” (Welch, 19 supra, 20 Cal. 4th at pp. 772–773, 85 Cal.Rptr.2d 203, 976 P.2d 754.) 20 ------------------------------------END FOOTNOTE------------------ 21

22 Finally, failure to delete inapplicable statutory sentencing factors from CALJIC No. 8.85 as given did not violate defendant's rights under the federal 23 Constitution. (People v. Box (2000) 23 Cal. 4th 1153, 1217, 99 Cal.Rptr.2d 69, 5 P.3d 130; People v. Turner (1994) 8 Cal. 4th 137, 207–208, 32 Cal.Rptr.2d 24 762, 878 P.2d 521.) Likewise, the failure to identify which factors were aggravating and which mitigating was not error; the aggravating or mitigating 25 nature of the factors is self-evident within the context of each case. (People v. Hillhouse (2002) 27 Cal. 4th 469, 509, 117 Cal.Rptr.2d 45, 40 P.3d 754; see 26 Box, at p. 1217, 99 Cal.Rptr.2d 69, 5 P.3d 130.) 27 Dickey, 35 Cal. 4th at 927-28.

28 161 1 Petitioner does not identify clearly established authority from the United States 2 Supreme Court holding that a jury must be instructed in a particular manner. The Eighth

3 Amendment does not require that a jury be instructed on particular statutory mitigating factors.

4 Buchanan, 522 U.S. at 275-77. Since the Supreme Court has not decided the issue, the state

5 supreme court’s decision could not be contrary to or an unreasonable application of United

6 States Supreme Court precedent. Musladin, 549 U.S. 76.

7 The state supreme court reasonably denied Petitioner’s specific arguments, as follows. 8 (1) Double Counting Aggravating Circumstances 9 Petitioner recasts as trial court error his claim III(G) (ineffective assistance of counsel) 10 allegations, ante, that CALJIC 8.85, factor (a), instructing on Penal Code section 190.3(a)

11 “circumstances of the crime” and “special circumstances found to be true” encourages jurors to

12 double count aggravating circumstances, resulting in an arbitrary and capricious verdict.

13 Petitioner argues the California Supreme Court’s rejection of the claim ignores that jury 14 confusion was likely given the two first degree felony murder convictions and five special

15 circumstances found true, arising from Petitioner’s status as an aider and abettor of felony

16 murder. (Doc. No. 142 at 214.) He revisits his theme the errant instruction allowed the jury to

17 emphasize aggravating evidence and de-emphasize mitigating evidence that “Petitioner did not

18 harbor any intent to kill either victim, and did not participate, encourage, or endorse the

19 murders.” (Doc. No. 144 at 56.) 20 However, as was the case in the above denial of claim III(G), Petitioner cannot 21 demonstrate clearly established federal law that duplicative aggravating circumstances violate

22 federal rights. The same claim was rejected by the United States Supreme Court in Tuilaepa,

23 where the Court concluded that:

24 [T]he sentencer should consider the circumstances of the crime in deciding 25 whether to impose the death penalty . . . this California factor instructs the jury to consider a relevant subject matter and does so in understandable terms. The 26 circumstances of the crime are a traditional subject for consideration by the sentencer, and an instruction to consider the circumstances is neither vague nor 27 otherwise improper under our Eighth Amendment jurisprudence. 28 162 1 Tuilaepa, 512 U.S. at 975-76.

2 The Supreme Court has examined the language in California’s jury instruction on 3 mitigation several times and upheld it against constitutional challenges. See Belmontes, 549

4 U.S. at 24; Brown v. Payton, 544 U.S. 133, 142 (2005); Boyde, 494 U.S. at 386. Particularly,

5 the Supreme Court has stated that “[a] capital sentencer need not be instructed how to weigh

6 any particular fact in the capital sentencing decision.” Tuilaepa, 512 U.S. at 978-79 (1994).

7 Similarly, in Marsh, the Supreme Court stated:

8 In aggregate, our precedents confer upon defendants the right to present 9 sentencers with information relevant to the sentencing decision and obligate sentencers to consider that information in determining the appropriate sentence. 10 The thrust of our mitigation jurisprudence ends here. “[W]e have never held that a specific method for balancing mitigating and aggravating factors in a capital 11 sentencing proceeding is constitutionally required.” 12 548 U.S. at 175 (quoting Franklin, 487 U.S. at 179) (citing Stephens, 462 U.S. at 875–876,

13 n.13).

14 Likewise, the state supreme court has repeatedly rejected this claim. See People v. 15 Lewis, 25 Cal. 4th 610, 669 (2001); People v. Ayala, 24 Cal. 4th 243, 288-289 (2000). That

16 court has found “[f]actor (a) of section 190.3 … does not impermissibly result in ‘double-

17 counting’ or automatically create a bias in favor of a death verdict.” Tully, 54 Cal. 4th at 1068.

18 In any event, Petitioner offers nothing more than surmise in support of the claim, for 19 the reasons stated. 20 (2) Identifying Aggravating and Mitigating Factors 21 Petitioner argues that CALJIC 8.85 fails to instruct jurors that Penal Code section 190.3 22 factors (a, b, c, and i) are to be considered aggravating and all other factors are to be considered

23 mitigating. (Doc. No. 142 at 215, citing People v. Coffman, 34 Cal. 4th 1, 108 (2004)

24 (“[Aggravating evidence must pertain to the circumstances of the capital offense (§ 190.3,

25 factor (a)), other violent criminal conduct by the defendant (id., factor (b)) or prior felony

26 convictions (id., factor (c)); only these three factors, and the experiential or moral implications 27 of the defendant's age (id., factor (i)), are properly considered in aggravation of penalty.”)

28 163 1 Petitioner argues this error kept the jury from appreciating that his minor participation 2 the crimes committed by R.C. could only be mitigating and not aggravating. (Doc. No. 144 at

3 56-57.) He observes in this regard the prosecution argument that being an accomplice “was

4 just as bad as personally committing the murders.” (Doc. No. 144 at 57.)

5 The California Supreme Court rejected the claim as it has in other cases, finding “self- 6 evident within the context of each case” the aggravating or mitigating nature of the sentencing

7 factors. Dickey, 35 Cal. 4th at 928.

8 That court was not unreasonable in rejecting the claim. Petitioner’s suggestion CALJIC 9 8.85 prevented the jury from meaningfully considering his minor participation the crime as a

10 mere accomplice ignores the plain language of the instruction.

11 Additionally, the failure to identify whether factors are aggravating or mitigating is not 12 contrary to or an unreasonable application of Supreme Court authority. In Pulley, the Supreme

13 Court reviewed California’s sentencing system, including the manner in which the jury

14 considered relevant factors in deciding the penalty. 465 U.S. at 51. The Supreme Court noted

15 that the 1977 death penalty law (like the 1978 law applicable in this case) did not identify or

16 separate the aggravating or mitigating factors. Id., at 53 n.14. The Court nonetheless found

17 California’s death penalty law to be constitutional. Id., at 51 (“Assuming that there could be a

18 capital sentencing system so lacking in other checks on arbitrariness that it would not pass

19 constitutional muster without comparative proportionality review, the 1977 California statute is 20 not of that sort.”). Pulley was clearly established authority at the time Petitioner’s conviction

21 became final on May 23, 2005.

22 In Tuilaepa, the Supreme Court revisited California’s death penalty sentencing scheme. 23 The Supreme Court rejected the argument that California’s “single list of factors” was

24 unconstitutional. The Court stated:

25 This argument, too, is foreclosed by our cases. A capital sentencer need not be 26 instructed how to weigh any particular fact in the capital sentencing decision. In California v. Ramos, for example, we upheld an instruction informing the jury 27 that the Governor had the power to commute life sentences and stated that “the fact that the jury is given no specific guidance on how the commutation factor is 28 164 to figure into its determination presents no constitutional problem.” [Citation] 1 Likewise, in Proffitt v. Florida, we upheld the Florida capital sentencing scheme even though “the various factors to be considered by the sentencing authorities 2 [did] not have numerical weights assigned to them.” [Citation] In Gregg, moreover, we “approved Georgia’s capital sentencing statute even though it 3 clearly did not channel the jury’s discretion by enunciating specific standards to guide the jury’s consideration of aggravating and mitigating circumstances.” 4 [Citation] We also rejected an objection “to the wide scope of evidence and argument” allowed at sentencing hearings. [Citation] In sum, “discretion to 5 evaluate and weigh the circumstances relevant to the particular defendant and the crime he committed” is not impermissible in the capital sentencing process. 6 [Citation] “Once the jury finds that the defendant falls within the legislatively defined category of persons eligible for the death penalty ... the jury then is free 7 to consider a myriad of factors to determine whether death is the appropriate punishment.” [Citation] Indeed, the sentencer may be given “unbridled 8 discretion in determining whether the death penalty should be imposed after it has found that the defendant is a member of the class made eligible for that 9 penalty.” [Citations] In contravention of those cases, petitioners’ argument would force the States to adopt a kind of mandatory sentencing scheme 10 requiring a jury to sentence a defendant to death if it found, for example, a certain kind or number of facts, or found more statutory aggravating factors than 11 statutory mitigating factors. The States are not required to conduct the capital sentencing process in that fashion. [Citation] 12

13 Accordingly, Petitioner has not demonstrated the trial court erred by instructing the jury 14 with the 190.3 factors to consider in determining the penalty pursuant to CALJIC 8.85.

15 ii. Any Error was Harmless 16 Petitioner argues the jury applied the erroneous instruction in an extra-aggravating 17 manner. (Doc. No. 142 at 214-14, citing Boyde, 494 U.S. at 388. He argues, as he did above,

18 that the unique facts of this case raise a reasonable likelihood the jury applied the instruction so

19 as to prevent consideration of constitutionally relevant evidence. (Doc. No. 142 at 215, citing 20 Boyde, 494 U.S. at 371.) Particularly, he argues that the error “prohibited the jury from giving

21 ‘meaningful consideration and effect to’ the fact that Petitioner was an accomplice and his

22 purported participation in the crime was relatively minor.” (Doc. No. 142 at 217, citing Abdul-

23 Kabir, 550 U.S. at 247.)

24 Petitioner supports the argument by pointing to CALJIC factor “j”, a mitigating factor, 25 and contends the prosecution’s argument that Petitioner’s culpability as a mere aider and

26 abettor was on par with that of R.C., the actual killer, allowed the jury to convert factor “j” into 27 an aggravating factor. He points to the prosecutor’s argument that although “[Petitioner] was

28 165 1 an accomplice, both he and R.C. did the burglary, did the robbery, committed the conduct that

2 resulted in these deaths.” (See RT 5137.)

3 Yet the California Supreme Court reasonably found that the instructions were adequate 4 to permit jurors to consider all the relevant mitigating evidence, Boyde, 494 U.S. at 381-82

5 (1990), and that on the facts and circumstances of this case Penal Code section 190.3(d)(g) did

6 not limit the jurors’ discretion in this regard. See Richter, 562 U.S. at 101 (state court finding

7 that a claim lacks merit precludes federal habeas relief so long as fair-minded jurists could

8 disagree on the correctness of the state court’s decision); see also the discussion of claim

9 XXV(E) below.

10 That court reasonably could find the sentencing discretion of Petitioner’s jury was 11 “suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious

12 action.” Gregg, 428 U.S. at 189. So even if California’s death penalty statute is infirm as

13 alleged, Petitioner has not demonstrated on the factual record any “substantial and injurious

14 effect or influence in determining [the] jury’s verdict,” under Brecht. Coleman, 525 U.S. at

15 145-46.

16 In sum, Petitioner has not demonstrated that the instructions given in this case in any 17 way foreclosed the jury from considering any relevant mitigating evidence.

18 iii. Conclusions 19 For the reasons stated, the California Supreme Court was not unreasonable in denying 20 allegations the trial court erred by failing to instruct the jury on the standard for weighing

21 aggravating and mitigating factors.

22 Accordingly, the California Supreme Court’s rejection of this claim was not contrary 23 to, or an unreasonable application of, clearly established federal law, or an unreasonable

24 determination of the facts in light of the evidence presented in the state court proceeding. 28

25 U.S.C. § 2254(d).

26 Claim XII(E) shall be denied. 27 9. Claim XII(F) 28 166 1 Petitioner alleges the trial court’s use of CALJIC 8.88 regarding weighing of 2 aggravating and mitigating factors violated his rights under the Fifth, Sixth, Eighth and

3 Fourteenth Amendments. (Doc. No. 51-1 ¶¶ 716-717.)

4 a. Supplemental Legal Standards 5 See section VII, B, 7, a, ante. 6 b. State Court Direct and Collateral Review 7 Petitioner presented this claim on direct appeal and it was denied on the merits. 8 Dickey, 35 Cal. 4th at 929.

9 c. Analysis 10 i. Trial Court Error 11 Petitioner argues that CALJIC 8.88, given in this case to instruct the jurors on weighing 12 of aggravating and mitigating factors was vague and improperly reduced the prosecution’s

13 burden of proof and inadequately defined mitigating circumstances. (Doc. No. 142 at 217.)

14 “[T]he Eighth and Fourteenth Amendments require that the sentencer, in all but the 15 rarest kind of capital case, not be precluded from considering, as a mitigating factor, any aspect

16 of a defendant’s character or record and any of the circumstances of the offense that the

17 defendant proffers as a basis for a sentence less than death.” Lockett, 438 U.S. 586 at 604;

18 Eddings, 455 U.S. at 113-114 (adopting rule in Lockett).

19 “The standard against which we assess whether jury instructions satisfy the rule of 20 Lockett and Eddings was set forth in Boyde, 494 U.S. 370 (1990).” Johnson, 509 U.S. at 367-

21 68. In Boyde, the Supreme Court held that “there is no . . . constitutional requirement of

22 unfettered sentencing discretion in the jury, and States are free to structure and shape

23 consideration of mitigating evidence ‘in an effort to achieve a more rational and equitable

24 administration of the death penalty.’” 494 U.S. at 377 (quoting Franklin, 487 U.S. at 181.

25 In evaluating the instructions, the “reviewing court must determine ‘whether there is a 26 reasonable likelihood that the jury has applied the challenged instruction in a way that prevents 27 the consideration of constitutionally relevant evidence.’” Johnson, 509 U.S. at 367 (quoting

28 167 1 Boyde, 494 U.S. at 380). “[W]e do not engage in a technical parsing of this language of the

2 instructions, but instead approach the instructions in the same way that the jury would—with a

3 commonsense understanding of the instructions in the light of all that has taken place at the

4 trial.” Id. at 368 (quoting Boyde, 494 U.S. at 381). Further, a single instruction “may not be

5 judged in artificial isolation but must be considered in light of the instructions as a whole and

6 the entire trial record.” McGuire, 502 U.S. at 72.

7 The jury was instructed pursuant to CALJIC 8.88 and in pertinent part that: 8 The weighing of aggravating and mitigating circumstances does not mean a 9 mere mechanical counting of factors on each side of an imaginary scale, or the arbitrary assignment of weights to any of them. You are free to assign whatever 10 moral or sympathetic value you deem appropriate to each and all of the various factors you are permitted to consider. In weighing the various circumstances 11 you determine under the relevant evidence which penalty is justified and appropriate by considering the totality of the aggravating circumstances with the 12 totality of the mitigating circumstances. 13 To return a judgment of death, each of you must be persuaded that the aggravating circumstances are so substantial in comparison with the mitigating 14 circumstances that it warrants death instead of life without parole. 15 (CT 502-503; RT 5154.)

16 The California Supreme Court in denying the claim stated that: 17 Defendant contends giving the standard instruction on the weighing of 18 aggravating and mitigating factors (CALJIC No. 8.88) violated his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States 19 Constitution. We have repeatedly rejected similar claims, and defendant gives us no compelling reason to reconsider our decisions. 20 “Defendant contends that the standard instruction on the weighing of mitigating 21 and aggravating factors was impermissibly vague and misleading in that it failed to inform the jury that unless it found that the factors in aggravation outweighed 22 the factors in mitigation, it could not impose a sentence of death, and in that it failed to inform the jury that if factors in mitigation outweighed those in 23 aggravation, it must impose a sentence of life in prison without the possibility of parole. He also complains that the instruction's direction that before the jury 24 may return a verdict of death, it must find that the aggravating circumstances are ‘so substantial’ as to warrant a sentence of death and not life imprisonment 25 without possibility of parole, was vague and led to arbitrary decision-making. He claims violation of his right to due process of law and to a reliable and 26 nonarbitrary penalty determination under the Eighth Amendment of the United States Constitution. [¶] We repeatedly have rejected identical claims and decline 27 defendant's invitation to reconsider our prior rulings. [Citations.]” (People v. Catlin (2001) 26 Cal. 4th 81, 174, 109 Cal.Rptr.2d 31, 26 P.3d 357 (Catlin ).) 28 168 1 Defendant also contends the standard instruction, in referring to the “totality” of the aggravating and mitigating circumstances, erroneously implied a single 2 mitigating circumstance could not outweigh any and all aggravating circumstances. However, the instruction was not susceptible of this 3 interpretation. (People v. Berryman (1993) 6 Cal. 4th 1048, 1099–1100, 25 Cal.Rptr.2d 867, 864 P.2d 40.) 4 Finally, no instruction defining life imprisonment without possibility of parole 5 was required. (People v. Hughes (2002) 27 Cal. 4th 287, 405, 116 Cal.Rptr.2d 401, 39 P.3d 432 (Hughes ).) 6

7 Dickey, 35 Cal. 4th at 929.

8 Petitioner does not identify clearly established authority from the United States 9 Supreme Court holding that a jury must be instructed in a particular manner. The Eighth

10 Amendment does not require that a jury be instructed on particular statutory mitigating factors.

11 Buchanan, 522 U.S. at 275-77. Since the Supreme Court has not decided the issue, the state

12 supreme court’s decision could not be contrary to or an unreasonable application of United

13 States Supreme Court precedent. Musladin, 549 U.S. 76.

14 The Supreme Court has examined the language in California’s jury instruction on 15 mitigation multiple times and upheld it against constitutional challenges every time. See

16 Belmontes, 549 U.S. at 24; Payton, 544 U.S. at 142; Boyde, 494 U.S. 370, 386.

17 The state supreme court reasonably denied Petitioner’s specific arguments, as follows. 18 (1) Weighing Process 19 Petitioner argues that on the facts and circumstances of this case, CALJIC 8.88 20 improperly suggested that jurors use a quantitative weighing process. He points to that portion

21 of CALJIC 8.88 instructing that “[i]n weighing the various circumstances you determine under

22 the relevant evidence which penalty is justified and appropriate by considering the totality of

23 the aggravating circumstances with the totality of the mitigating circumstances.” (CT 502-503;

24 RT 5154; see also Doc. No. 142 at 219.) He argues this language is inherently quantitative and

25 implicitly weighs in favor of death because it addresses the weight of the totality of

26 circumstances rather than the weight of any one circumstance. 27 However, Petitioner concedes the jury was instructed against “mere mechanical 28 169 1 counting” of factors and that they could assign “whatever moral and sympathetic value” they

2 deemed appropriate to any of the factors. (Doc. No. 142 at 219.) The jury was instructed that

3 “[i]n weighing the various circumstances you determine under the relevant evidence which

4 penalty is justified and appropriate by considering the totality of the aggravating circumstances

5 with the totality of the mitigating circumstances.” (RT at 5154.)

6 Given the foregoing, the totality of the instructions given, and the presumption that 7 jurors understand and follow their instructions, the state supreme court’s rejection of the claim

8 was not unreasonable.

9 (2) Ambiguous Terminology 10 Petitioner argues that on the facts and circumstances of this case, the definitions of 11 “aggravating” and “mitigating” provided in CALJIC 8.88 created juror confusion. (Doc. No.

12 142 at 220.)

13 The jury was instructed pursuant to CALJIC 8.88 and in pertinent part that: 14 An aggravating factor is any fact, condition or event attending the commission 15 of a crime which increases its guilt or enormity, or adds to its injurious consequences which is above and beyond the elements of the crime itself. 16 A mitigating circumstance is any fact, condition or event which as such, does 17 not constitute justification or excuse for the crime in question, but may be considered as an extenuating circumstance in determining the appropriateness of 18 the death penalty. 19 (CT 502; RT 5153-54.) Petitioner argues particularly that terms used in the definition of 20 “mitigating circumstance” such as “extenuating” are not plain language terms and required

21 further definition. (Doc. No. 142 at 221.)

22 As noted, the proper inquiry when an instruction is challenged as ambiguous is 23 “whether there is a reasonable likelihood that the jury has applied the challenged instruction in

24 a way that prevents the consideration of constitutionally relevant evidence.” Payton, 544 U.S.

25 at 143 (quoting Boyde, 494 U.S. at 380). The Supreme Court further emphasized:

26 [J]urors do not sit in solitary isolation booths parsing instructions for subtle 27 shades of meaning in the same way that lawyers might. Differences among them in interpretation of instructions may be thrashed out in the deliberative process, 28 170 with commonsense understanding of the instructions in the light of all that has 1 taken place at the trial likely to prevail over technical hairsplitting. 2 Payton, 544 U.S. at 143 (quoting Boyde, 494 U.S. at 380-81).

3 Here again, the state supreme court reasonably could find the challenged language to be 4 plain on its face. That court could reasonably find Petitioner has not demonstrated a

5 reasonable likelihood that the jury has applied the challenged instruction in a way that prevents

6 the consideration of constitutionally relevant evidence.

7 Moreover, the Eighth Amendment does not require that a jury be instructed on 8 particular statutory mitigating factors. Buchanan, 522 U.S. at 275-77.

9 Given the foregoing, the totality of instructions given, and the presumption that jurors 10 understand and follow their instructions, the state supreme court’s rejection of the claim was

11 not unreasonable.

12 (3) Burden of Proof 13 Petitioner argues that CALJIC 8.88 fails to incorporate the standard of proof stated in 14 Penal Code section 190.3.

15 The jury was instructed pursuant to CALJIC 8.88 and in pertinent part that: 16 After having heard and received all of the evidence, and after having heard and considered the arguments of counsel, you shall consider, take into account and 17 be guided by the applicable factors of aggravating and mitigating circumstances upon which you have been instructed. 18 To return a judgment of death, each of you must be persuaded that the 19 aggravating circumstances are so substantial in comparison with the mitigating circumstances that it warrants death instead of life without parole. 20

21 (CT 502.)

22 Petitioner argues that CALJIC 8.88 unfairly omits language contained in section 190.3 23 which provides that:

25 [A]fter having heard and received all of the evidence, and after having heard 26 and considered the arguments of counsel, the trier of fact shall consider, take into account and be guided by the aggravating and mitigating circumstances 27

28 171 referred to in this section, and shall impose a sentence of death if the trier of fact 1 concludes that the aggravating circumstances outweigh the mitigating circumstances. If the trier of fact determines that the mitigating circumstances 2 outweigh the aggravating circumstances the trier of fact shall impose a sentence of confinement in state prison for a term of life without the possibility of parole. 3

5 (Doc. No. 142 at 218; see also CT 502-03.)

6 Petitioner argues that on the facts and circumstances of this case, the term “so

7 substantial” is ambiguous and impermissibly prevented the jury from selecting LWOP where a

8 single mitigating factor was found. (Id.) He argues these errors left the jury impermissible

9 “open-ended discretion” regarding imposition of the death penalty, reducing the prosecution’s

10 burden of proof. (Doc. No. 142 at 219, citing Maynard v. Cartwright, 486 U.S. 356, 361–62

11 (1988) (channeling and limiting of the sentencer's discretion in imposing the death penalty is a

12 fundamental constitutional requirement for sufficiently minimizing the risk of wholly arbitrary

13 and capricious action).)

14 However, upon consideration of the entire instructional charge to the jury and related

15 argument, the state supreme court reasonably could find it is unlikely the alleged vagueness

16 prevented consideration of constitutionally relevant evidence in the sentence determination.

17 Boyde, 494 U.S. at 380.

18 Furthermore, for the reasons stated in the discussion of claim XII(G), below,

19 California’s penalty phase process is moral and normative and does not place a burden of proof 20 upon the prosecution. Petitioner’s argument to the contrary is unavailing.

21 For the reasons stated, the California Supreme Court reasonably rejected the claim as it

22 has in other cases, finding that CALJIC 8.88 did not prevent proper weighing of aggravating

23 and mitigating evidence. Dickey, 35 Cal. 4th at 929 (finding the aggravating or mitigating

24 nature of the factors to be self-evident within the context of each case).

26 ii. Any Error was Harmless 27 Petitioner argues the erroneous instruction led to juror confusion in the process of 28 172 1 weighing aggravating and mitigating evidence and prevented the jury from giving full meaning

2 and effect to all evidence in mitigation. Especially so here, he argues, given that he was

3 charged and convicted as a mere accomplice. See Boyde, 494 U.S. at 381 (the term

4 “extenuate” was defined for the jury removing the possibility of confusion by the jury in

5 applying factor (k)). Petitioner argues this confusion denied him an individualized and reliable

6 penalty determination.

7 Here again, the California Supreme Court reasonably could find the instructions were 8 adequate to permit jurors to consider all the relevant mitigating evidence, Boyde, 494 U.S. at

9 381-82 (1990), and did not limit the jurors’ discretion in this regard. See Richter, 562 U.S. at

10 101 (state court finding that a claim lacks merit precludes federal habeas relief so long as fair-

11 minded jurists could disagree on the correctness of the state court’s decision). The sentencing

12 discretion of Petitioner’s jury was “suitably directed and limited so as to minimize the risk of

13 wholly arbitrary and capricious action.” Gregg, 428 U.S. at 189.

14 It can be presumed the jury followed the instructions, including the cautionary 15 instructions, Weeks, 528 U.S. at 234, applying a “commonsense understanding of the

16 instruction in the light of all that has taken place at the trial.” Johnson, 509 U.S. at 368; see the

17 discussion of claim III(G), ante.

19 iii. Conclusions 20 The California Supreme Court was not unreasonable in denying allegations the trial 21 court erred by using CALJIC 8.88 regarding weighing of aggravating and mitigating factors. 22 Accordingly, the California Supreme Court’s rejection of this claim was not contrary 23 to, or an unreasonable application of, clearly established federal law, or an unreasonable 24 determination of the facts in light of the evidence presented in the state court proceeding. 28 25 U.S.C. § 2254(d). 26 Claim XII(F) shall be denied. 27 10. Claim XII(G) 28 173 1 Petitioner alleges the trial court erred by failing to instruct the jury that a “reasonable 2 doubt” standard was applicable to their determinations at the penalty phase, violating his rights

3 under the Fifth, Sixth, Eighth, and Fourteenth Amendments. (Doc. No. 51-1 ¶¶ 718-719.)

4 a. Supplemental Legal Standards 5 See section VII, B, 7, a, ante. 6 b. State Court Direct and Collateral Review 7 Petitioner presented this claim on direct appeal and it was denied on the merits. Dickey, 8 35 Cal. 4th at 929-31.

9 c. Analysis 10 i. Trial Court Error 11 Petitioner argues the trial court prejudicially erred by failing to instruct the jury that a 12 “beyond a reasonable doubt” burden of proof applied at the penalty phase. (Doc. No. 142 at

13 221-24.)

14 The California Supreme Court in denying the claim stated that: 15 Defendant contends failure to instruct the jury that the reasonable doubt 16 standard governs the penalty determination violated his rights under the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution. We have 17 rejected the identical contention, and defendant gives us no reason to reconsider our decision. 18 Defendant claims that it is unconstitutional to impose a sentence of death unless 19 the aggravating circumstances outweigh the mitigating circumstances beyond a reasonable doubt. This claim was first rejected by our court in People v. 20 Rodriguez [(1986)] 42 Cal. 3d [730,] 777–779 [230 Cal.Rptr. 667, 726 P.2d 113], and has been rejected ever since. (See, e.g., [People v.] Snow [(2003)] 30 21 Cal. 4th [43,] 125–127 [132 Cal.Rptr.2d 271, 65 P.3d 749]; Burgener, supra, 29 Cal. 4th at p. 884, fn. 7 [129 Cal.Rptr.2d 747, 62 P.3d 1]; People v. Gutierrez 22 (2002) 28 Cal. 4th 1083, 1150–1151 [124 Cal.Rptr.2d 373, 52 P.3d 572]; Clair, supra, 2 Cal. 4th at p. 691 [7 Cal.Rptr.2d 564, 828 P.2d 705].) As we recently 23 stated: ‘The Constitution does not require the jury to find beyond a reasonable doubt that a particular factor in aggravation exists, that the aggravating factors 24 outweighed the mitigating factors, or that death was the appropriate penalty.’ (Burgener, supra, 29 Cal. 4th at p. 884 [129 Cal.Rptr.2d 747, 62 P.3d 1].) 25 (People v. Cox (2003) 30 Cal. 4th 916, 971, 135 Cal.Rptr.2d 272, 70 P.3d 277.) 26 Defendant acknowledges this court has previously rejected similar arguments. However, as did the defendant in Cox, defendant “asks us to reconsider this 27 position in light of two recent United States Supreme Court cases, Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435], and Ring v. 28 174 Arizona (2002) 536 U.S. 584 [122 S.Ct. 2428, 153 L.Ed.2d 556]. Specifically, 1 defendant argues that the two cases read together mandate that the aggravating circumstances necessary for the jury's imposition of the death penalty be found 2 beyond a reasonable doubt. We disagree. As this court recently stated in [People v.] Snow, supra, 30 Cal. 4th at page 126, footnote 32 [132 Cal.Rptr.2d 271, 65 3 P.3d 749]: ‘We reject that argument for the reason given in People v. Anderson [, supra,] 25 Cal. 4th [at pp.] 589–590, footnote 14 [106 Cal.Rptr.2d 575, 22 4 P.3d 347]: “[U]nder the California death penalty scheme, once the defendant has been convicted of first degree murder and one or more special 5 circumstances has been found true beyond a reasonable doubt, death is no more than the prescribed statutory maximum for the offense; the only alternative is 6 life imprisonment without possibility of parole. (§ 190.2, subd. (a).) Hence, facts which bear upon, but do not necessarily determine, which of these two 7 alternative penalties is appropriate do not come within the holding of Apprendi.” The high court's recent decision in Ring v. Arizona [, supra,] 536 8 U.S. 584 [122 S.Ct. 2428, 153 L.Ed.2d 556] does not change this analysis. Under the Arizona capital sentencing scheme invalidated in Ring, a defendant 9 convicted of first-degree murder could be sentenced to death if, and only if, the trial court first found at least one of the enumerated aggravating factors true. (Id. 10 at p. 603 [122 S.Ct. 2428].) Under California's scheme, in contrast, each juror must believe the circumstances in aggravation substantially outweigh those in 11 mitigation, but the jury as a whole need not find any one aggravating factor to exist. The final step in California capital sentencing is a free weighing of all the 12 factors relating to the defendant's culpability, comparable to a sentencing court's traditionally discretionary decision to, for example, impose one prison sentence 13 rather than another. Nothing in Apprendi or Ring suggests the sentencer in such a system constitutionally must find any aggravating factor true beyond a 14 reasonable doubt.’ (Accord, People v. Smith (2003) 30 Cal. 4th 581, 642 [134 Cal.Rptr.2d 1, 68 P.3d 302]; People v. Prieto (2003) 30 Cal. 4th 226, 275 [133 15 Cal.Rptr.2d 18, 66 P.3d 1123] [(Prieto )].)” (People v. Cox, supra, 30 Cal. 4th at pp. 971–972, 135 Cal.Rptr.2d 272, 70 P.3d 277.) 16

17 Dickey, 35 Cal. 4th at 929-31.

18 Petitioner complains that with the exception of the charged prior conviction as to which 19 the jury was instructed a “proof beyond a reasonable doubt” standard applied, no penalty phase 20 burden of proof instruction was given. (Doc. No. 142 at 221-22.) He argues this was error

21 because the penalty phase requires Penal Code section 190.3 fact finding as an element of

22 capital murder and imposition of a sentence greater than that authorized by the guilt phase

23 verdict. (Doc. No. 142 at 223, citing Apprendi v. New Jersey, 530 U.S. 466, 478 (2000); Ring

24 v. Arizona, 536 U.S. 584, 589 (2002).) He argues the jury should have been instructed that

25 before a death verdict could be returned, the jury was required to find that: (i) any aggravating

26 factors upon which it relied were true beyond a reasonable doubt; and (ii) the aggravating 27 factor or factors outweighed the mitigating factors beyond a reasonable doubt. (Doc. No. 142

28 175 1 at 223.)

2 Particularly, Petitioner takes issue with the California Supreme Court’s finding that: 3 [O]nce the defendant has been convicted of first-degree murder and one or more 4 special circumstances has been found true beyond a reasonable doubt, death is no more than the prescribed statutory maximum for the offense; the only 5 alternative is life imprisonment without possibility of parole. (§ 190.2, subd. (a).) Hence, facts which bear upon, but do not necessarily determine, which of 6 these two alternative penalties is appropriate do not come within the holding of Apprendi. 7

8 Dickey, 35 Cal. 4th at 931. Petitioner argues this finding is contrary to Ring’s requirement that

9 findings of fact which increase the punishment authorized must be found by a jury beyond a

10 reasonable doubt. (Doc. No. 142 at 224, citing Ring, 536 U.S. at 602.)

11 However, the California Supreme Court reasonably denied the claim. State and federal 12 courts have rejected the claim. See, e.g. Williams v. Calderon, 52 F.3d 1465, 1484-85 (9th Cir.

13 1995) (failure to require a specific finding that death is the appropriate penalty beyond a

14 reasonable doubt does not render California’s death penalty statute unconstitutional); People v.

15 Webb, 6 Cal. 4th 494, 536 (1993). Under California law “neither death nor life is

16 presumptively appropriate or inappropriate under any set of circumstances, but in all cases the

17 determination of the appropriate penalty remains a question for each individual juror.” People

18 v. Samayoa, 15 Cal. 4th 795, 853 (1997).

19 Petitioner’s argument that the Constitution requires the jury to determine beyond a 20 reasonable doubt that death is the appropriate penalty runs contrary to the conclusion of a

21 plurality of the Supreme Court that a defendant may constitutionally be required to establish

22 the existence of mitigating circumstances by only a preponderance of the evidence standard.

23 See Walton, 497 U.S. at 649-651.

24 In California, for a defendant to be eligible for the death penalty, the jury must, beyond 25 a reasonable doubt, find him guilty of murder in the first degree, and must find true one of the

26 special circumstances set forth in Penal Code section 190.2. Tuilaepa, 512 U.S. at 975. But 27 once a defendant is convicted, “the prosecution has no burden of proof that death is the

28 176 1 appropriate penalty, or that one or more aggravating factors or crimes exist, in order to obtain a

2 judgment of death.” People v. Anderson, 25 Cal. 4th 543, 589 (2001). Instead, the clearly

3 established law at the time Petitioner’s conviction became final vested the jury with “unbridled

4 discretion in determining whether the death penalty should be imposed after it has found that

5 the defendant is a member of the class made eligible for that penalty.” Tuilaepa, 512 U.S. at

6 979-80.

7 Further, “the United States Supreme Court has never stated that a beyond a reasonable 8 doubt standard is required when determining whether a death penalty should be imposed.”

9 Harris v. Pulley, 692 F.2d 1189, 1195 (1982), rev’d on other grounds by Pulley v. Harris, 465

10 U.S. 37, 41 (1984). Nor is there any Supreme Court authority requiring a burden of proof or

11 persuasion be assigned to any of the jury’s penalty phase determinations. On the contrary, the

12 Supreme Court has held that no “specific method for balancing mitigating and aggravating

13 factors in a capital sentencing proceeding is constitutionally required.” Marsh, 548 U.S. at

14 175. California’s death penalty sentencing scheme has been consistently upheld as

15 constitutional by the Supreme Court. Tuilaepa, 512 U.S. at 975-80; Pulley, 465 U.S. at 53.

16 In these regards, the California Supreme Court has held that: 17 We also reject defendant’s contention that the California death penalty law 18 violates the Eighth and Fourteenth Amendments because the jury is not instructed as to any burden of proof in selecting the penalty to be imposed. As 19 we have explained, ‘[u]nlike the guilt determination, “the sentencing function is inherently moral and normative, not factual” … and, hence, not susceptible to a 20 burden-of-proof quantification.’ … The instructions as a whole adequately guide the jury in carrying out their ‘moral and normative’ function.” (People v. 21 Jenkins, supra, 22 Cal. 4th at pp. 1053–1054, 95 Cal. Rptr. 2d 377, 997 P.2d 1044.) The death penalty statute is not unconstitutional because it fails “to 22 impose a burden of proof on either party, even if only proof by a preponderance of the evidence, or, alternatively, in failing to instruct the jury on the absence of 23 a burden of proof. [Citations].” (People v. Vines (2011) 51 Cal. 4th 830, 891, 124 Cal. Rptr. 3d 830, 251 P.3d 943.) 24

25 Tully, 54 Cal. 4th at 1068.

26 Here, the jury was instructed that an aggravating criminal conviction must be proved 27 beyond a reasonable doubt. (RT 8940-41; CT 500.) They were instructed to consider the

28 177 1 applicable factors of aggravating and mitigating circumstances and that in order to find for

2 death each juror must be persuaded that the aggravating evidence and/or circumstances is so

3 substantial in comparison with the mitigating circumstances that it warrants death instead of

4 life without parole. (RT 8942-43; see also CT 502-503 (CALJIC 8.88).) Due process requires

5 no more. Harris, 692 F.2d at 1194.

6 California is not required to adopt specific standards for instructing the jury on 7 consideration of aggravating and mitigating circumstances. Stephens, 462 U.S. at 890; see also

8 Ortiz, 149 F.3d at 944 (citing Stephens, 462 U.S. at 880) (the Constitution requires only that a

9 state provide procedures to guide the sentencer’s discretion generally). The Ninth Circuit has

10 rejected argument otherwise. See Smith v. Stewart, 140 F.3d 1263, 1272 (9th Cir. 1998). As to

11 Petitioner’s claim that the jury must determine that death is the appropriate penalty beyond a

12 reasonable doubt, this too has been rejected. Harris, 692 F.2d at 1195.

13 For the reasons stated, the state supreme court reasonably could find the requirement 14 under California’s death penalty statute, that the jury weigh aggravating and mitigating factors

15 before imposing the death penalty, adequately guarantees the jury’s discretion will be guided

16 and its considerations deliberate.

17 ii. Any Error Was neither Structural nor More Than Harmless 18 Petitioner argues the allegedly erroneous failure to instruct that the reasonable doubt 19 standard governed sentence selection denied him rights to due process, a fair trial, effective 20 assistance of counsel, and a reliable sentence. He argues this error was structural and

21 reversable per se. (Doc. No. 142 at 224.)

22 However, the state supreme court reasonably could find no structural error because the 23 claimed burden of proof at the penalty phase was reasonably rejected, for the reasons stated.

24 Alternatively, Petitioner argues the alleged trial court error was more than harmless 25 because it had a substantial and injurious effect or influence in the jury’s determination of his

26 verdict. (See Doc. No. 142 at 222.) 27 Where the constitutional error in issue is not structural, habeas relief is unavailable 28 178 1 unless the error had a substantial and injurious effect on the verdict. Brecht, 507 U.S. at 637.

2 Here, the state supreme court reasonably could find that if the state court erred as 3 alleged, Petitioner’s penalty trial was nonetheless fair and his sentence reliable. As noted, in

4 reviewing penalty phase instructions, the test is “whether there is a reasonable likelihood that

5 the jury has applied the challenged instruction in a way that prevents the consideration of

6 constitutionally relevant evidence.” Boyde, 494 U.S. at 380. Further, a single instruction “may

7 not be judged in artificial isolation,” but must be considered in light of the instructions as a

8 whole and the entire trial record. McGuire, 502 U.S. at 72.

9 The state supreme court reasonably could find on the facts and circumstances of this 10 case that the jury was not precluded from considering constitutionally relevant mitigating and

11 sympathetic evidence during their sentence deliberations. The sentencing discretion of

12 Petitioner’s jury was “suitably directed and limited so as to minimize the risk of wholly

13 arbitrary and capricious action.” Gregg, 428 U.S. at 189.

14 The Supreme Court has never required a sentencing court to instruct a jury on how to 15 weigh and balance factors in aggravation and mitigation. In Tuilaepa, the Supreme Court

16 stated, “[a] capital sentencer need not be instructed how to weigh any particular fact in the

17 capital sentencing decision.” 512 U.S. at 979. “Once the jury finds that the defendant falls

18 within the legislatively defined category of persons eligible for the death penalty, . . . the jury

19 then is free to consider a myriad of factors to determine whether death is the appropriate 20 punishment.” Id. (quoting Ramos, 463 U.S. at 1008.)

21 In Marsh, the Supreme Court stated: 22 In aggregate, our precedents confer upon defendants the right to present 23 sentencers with information relevant to the sentencing decision and oblige sentencers to consider that information in determining the appropriate sentence. 24 The thrust of our mitigation jurisprudence ends here. “[W]e have never held that a specific method for balancing mitigating and aggravating factors in a capital 25 sentencing proceeding is constitutionally required.” 26 548 U.S. at 175 (quoting Franklin, 487 U.S. at 179). 27 It can be presumed the jury followed the instructions, including the cautionary 28 179 1 instructions, Weeks, 528 U.S. at 234, applying a “commonsense understanding of the

2 instruction in the light of all that has taken place at the trial.” Johnson, 509 U.S. at 368; see

3 also the discussion of claim III(G), ante.

4 For the reasons stated, the state supreme court reasonably could find any alleged error 5 to be non-structural and harmless.

6 iii. Conclusions 7 The California Supreme Court was not unreasonable in denying allegations the trial 8 court erred by failing to instruct the jury that a “reasonable doubt” standard was applicable to

9 their determinations at the penalty phase.

10 Accordingly, the California Supreme Court’s rejection of this claim was not contrary 11 to, or an unreasonable application of, clearly established federal law, or an unreasonable

12 determination of the facts in light of the evidence presented in the state court proceeding. 28

13 U.S.C. § 2254(d).

14 Claim XII(G) shall be denied. 15 11. Claim XII(H) 16 Petitioner alleges the trial court erred by failing to instruct the jury that unanimity was 17 required for findings of aggravating factors, denying his rights under the Fifth, Sixth, Eighth

18 and Fourteenth Amendments. (Doc. No. 51-1 ¶¶ 720-721.)

19 a. Supplemental legal Standards 20 i. Sentencing Discretion 21 See section VII, B, 7, a, ante. 22 b. State Court Direct and Collateral Review 23 Petitioner presented this claim on direct appeal and it was denied on the merits. Dickey, 24 35 Cal. 4th at 931.

25 c. Analysis 26 i. Trial Court Error 27 Petitioner revisits his claim XII(G) argument above that Penal Code section 190.3 28 180 1 requires fact finding as to aggravating and mitigating circumstances as an element of capital

2 murder, contending here that unanimity is required on such findings. (Doc. No. 142 at 225; see

3 also Doc. No. 144 at 225.)

4 The California Supreme Court in denying the claim on direct appeal stated that: 5 Nor is the jury constitutionally required to achieve unanimity as to aggravating 6 factors. (Brown, supra, 33 Cal. 4th at p. 402, 15 Cal.Rptr.3d 624, 93 P.3d 244; People v. Jenkins (2000) 22 Cal. 4th 900, 1053, 95 Cal.Rptr.2d 377, 997 P.2d 7 1044.) 8 Dickey, 35 Cal. 4 th at 931.

9 As he did above in claim XII(G), Petitioner relies upon Apprendi and Ring, arguing that 10 the jury likely did not reach agreement on the reasons for imposing the death penalty. (Doc.

11 No. 142 at 225.)

12 However, the state supreme court was not unreasonable in denying the claim for the 13 reasons stated, summarized here. (See discussion of claim XII(G) above. )

14 In California, for a defendant to be eligible for the death penalty, the jury must, beyond 15 a reasonable doubt, find him guilty of murder in the first degree, and must find true one of the

16 special circumstances set forth in Penal Code section 190.2. Tuilaepa, 512 U.S. at 975. But

17 once a defendant is convicted, “the prosecution has no burden of proof that death is the

18 appropriate penalty, or that one or more aggravating factors or crimes exist, in order to obtain a

19 judgment of death.” Anderson, 25 Cal. 4th at 589. Instead, the clearly established law at the 20 time Petitioner’s conviction became final vested the jury with “unbridled discretion in

21 determining whether the death penalty should be imposed after it has found that the defendant

22 is a member of the class made eligible for that penalty.” Tuilaepa, 512 U.S. at 979-80.

23 Here, the jury was instructed that an aggravating criminal conviction must be proved 24 beyond a reasonable doubt. (RT 5152.) They were instructed to consider the applicable

25 factors of aggravating and mitigating circumstances and that in order to find for death each

26 juror must be persuaded that the aggravating evidence and/or circumstances is so substantial in 27 comparison with the mitigating circumstances that it warrants death instead of life without

28 181 1 parole. (RT 5154; see also CT 502-503 (CALJIC 8.88).) Due process requires no more.

2 Harris, 692 F.2d at 1194.

3 California is not required to adopt specific standards for instructing the jury on 4 consideration of aggravating and mitigating circumstances. Stephens, 462 U.S. at 890; see also

5 Ortiz, 149 F.3d at 944 (citing Stephens, 462 U.S. at 880) (the Constitution requires only that a

6 state provide procedures to guide the sentencer’s discretion generally). The Ninth Circuit has

7 rejected argument otherwise. See Smith, 140 F.3d at 1272. As to Petitioner’s claim that the

8 jury must determine that death is the appropriate penalty beyond a reasonable doubt, this too

9 has been rejected. Harris, 692 F.2d at 1195.

10 For the reasons stated, the state supreme court reasonably could find the requirement 11 under California’s death penalty statute, that the jury weigh aggravating and mitigating factors

12 before imposing the death penalty, adequately guarantees the jury’s discretion will be guided

13 and its considerations deliberate.

14 ii. Any Error was Harmless 15 If arguendo the trial court erred as alleged, the state supreme court reasonably could 16 find the error to be harmless.

17 Petitioner argues that absent an unanimity instruction at the penalty phase, “it is highly 18 probable that the jury could have been divided with respect to both the number and weight of

19 the aggravating factors, and that a sentence to death was imposed without any basis for 20 agreement regarding the reasons therefor.” (Doc. No. 51-1 ¶720.)

21 Petitioner argues the alleged trial court error was more than harmless because it had a 22 substantial and injurious effect or influence in the jury’s determination of his verdict. He

23 argues this error denied him due process, a fair trial, effective assistance of counsel, and a

24 reliable sentence determination. (Id., at ¶ 721.)

25 Where the constitutional error in issue is not structural, habeas relief is unavailable 26 unless the error had a substantial and injurious effect on the verdict. Brecht, 507 U.S. at 637. 27 Here, the state court reasonably could have found that the jury was not precluded from 28 182 1 considering constitutionally relevant mitigating and sympathetic evidence during their sentence

2 deliberations. Boyde, 494 U.S. at 380. For the reasons stated, the sentencing discretion of

3 Petitioner’s jury was “suitably directed and limited so as to minimize the risk of wholly

4 arbitrary and capricious action.” Gregg, 428 U.S. at 189. Petitioner has not demonstrated on

5 the factual record any “substantial and injurious effect or influence in determining [the] jury’s

6 verdict,” under Brecht. Coleman, 525 U.S. at 145-46. The Supreme Court has never required

7 a sentencing court to instruct a jury on how to weigh and balance factors in aggravation and

8 mitigation.

9 In Tuilaepa, the Supreme Court stated, “[a] capital sentencer need not be instructed 10 how to weigh any particular fact in the capital sentencing decision.” 512 U.S. at 979. “Once

11 the jury finds that the defendant falls within the legislatively defined category of persons

12 eligible for the death penalty, . . . the jury then is free to consider a myriad of factors to

13 determine whether death is the appropriate punishment.” Id. (quoting Ramos, 463 U.S. at

14 1008.)

15 In Marsh, the Supreme Court stated: 16 In aggregate, our precedents confer upon defendants the right to present 17 sentencers with information relevant to the sentencing decision and oblige sentencers to consider that information in determining the appropriate sentence. 18 The thrust of our mitigation jurisprudence ends here. “[W]e have never held that a specific method for balancing mitigating and aggravating factors in a capital 19 sentencing proceeding is constitutionally required.” 20

21 548 U.S. at 175 (quoting Franklin, 487 U.S. at 179).

22 It can be presumed the jury followed the instructions, including the cautionary 23 instructions, Weeks, 528 U.S. at 234, applying a “commonsense understanding of the

24 instruction in the light of all that has taken place at the trial.” Johnson, 509 U.S. at 368.

25 iii. Conclusions 26 The California Supreme Court was not unreasonable in denying allegations the trial 27 court erred by failing to instruct the jury that unanimity was required for findings of

28 183 1 aggravating factors.

2 Accordingly, the California Supreme Court’s rejection of this claim was not contrary 3 to, or an unreasonable application of, clearly established federal law, or an unreasonable

4 determination of the facts in light of the evidence presented in the state court proceeding. 28

5 U.S.C. § 2254(d).

6 Claim XII(H) shall be denied. 7 C. Claims Relating to Jury Misconduct 8 1. Legal Standards 9 Due process requires that the defendant be tried by “a jury capable and willing to 10 decide the case solely on the evidence before it.” Smith, 455 U.S. at 217; see also Plache, 913

11 F.2d at 1377-78 (“It is well-settled that a single partial juror deprives a defendant of his Sixth

12 Amendment right to a trial by an impartial jury.”).

13 On collateral review, juror misconduct claims “are generally subject to a ‘harmless 14 error’ analysis, namely, whether the error had ‘substantial and injurious’ effect or influence in

15 determining the jury’s verdict.” Brecht, 507 U.S. at 638; Fields v. Brown, 503 F.3d 755, 781

16 n.19 (noting that Brecht provides the standard of review for harmless error in cases involving

17 unconstitutional juror misconduct); Jeffries v. Blodgett, 5 F.3d 1180, 1190 (9th Cir. 1993) (a

18 habeas petitioner must show that the alleged error “had substantial and injurious effect or

19 influence in determining the jury’s verdict.”). 20 2. Claim XX 21 Petitioner alleges that his jury engaged in prejudicial misconduct by considering 22 extraneous evidence during deliberations, giving rise to a presumption of prejudice, violating

23 his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments. (Doc. No. 51-1 ¶¶ 850-

24 856.)

25 a. Supplemental Legal Standards 26 A jury’s consideration of extraneous evidence violates a criminal defendant’s right to 27 trial by jury. Turner v. Louisiana, 379 U.S. 466, 471-73 (1965).

28 184 1 The introduction of prejudicial extraneous influences into the jury room constitutes 2 misconduct which may result in the reversal of a conviction. Parker v. Gladden, 385 U.S. 363,

3 364-65 (1966).

4 A claim that jurors were exposed to extrajudicial evidence is considered based on an 5 objective standard - whether the evidence would have affected a reasonable juror’s

6 consideration of the evidence. Fields, 503 F.3d, at 781 n.22.

7 b. State Court Direct and Collateral Review 8 Petitioner raised this claim in his second state exhaustion petition (Lod. Doc. No. 30 at 9 335-38) and it was summarily denied on the merits and on procedural grounds (Lod. Doc. No.

10 31, Order Denying Cal. Exh. Pet., In re Colin Raker Dickey, No. S165302 (May 29, 2012)).

11 c. Analysis 12 i. Consideration of Extraneous Evidence 13 Petitioner argues that during penalty phase deliberations the jurors considered and were 14 biased by “extrajudicial evidence regarding the facts underlying Petitioner’s prior conviction

15 for burglary.” (Doc. No. 51-1 ¶ 855; see also Doc. No. 142 at 226-28, citing Irvin v. Dowd,

16 366 U.S. 717, 722 (1961) (the right to jury trial guarantees to the criminally accused a fair trial

17 by a panel of impartial, indifferent jurors); Sassounian v. Roe, 230 F. 3d 1097, 1108-11 (9th

18 Cir. 2000) (jury’s consideration of extrinsic evidence found prejudicial under Brecht).

19 Specifically, Petitioner argues that during deliberations, the jury had access to and 20 likely considered newspaper accounts before and during trial of extrinsic facts underlying the

21 prior felony burglary conviction to which he had stipulated. (Doc. No. 142 at 228-29, citing

22 RT 5133.) He argues the jury was not entitled to consider these facts which involved the theft

23 and sexual assault upon the body of a seven-year-old girl from a funeral home in Reno,

24 Nevada. (See RT 5081.)

25 However, the state supreme court reasonably denied the claim. Petitioner speculates 26 upon but does not point to facts in the record demonstrating the jury was aware of and 27 considered facts underlying the felony burglary conviction.

28 185 1 Petitioner argues the state supreme court unreasonably denied the claim “despite its 2 obligation to accept as true that the jury improperly considered the facts underlying the

3 burglary conviction in rendering its verdict.” (Doc. No. 144 at 63.) But as this Court

4 previously pointed out, in cases of summary denial it appears that state supreme court

5 “generally assumes the allegations in the petition to be true, but does not accept wholly

6 conclusory allegations, and will also review the record of the trial ... to assess the merits of the

7 Petitioner's claims.” (Doc. No. 135 at 14.) This is not a case where facts in the record

8 supported a prima facie claim. Cf. Cannedy v. Adams, 706 F.3d 1148, 1161 (9th Cir. 2013)

9 (counsel ineffective for failure to adequately investigate colorable claim).

10 Moreover, the jury was instructed to consider only evidence developed at trial and that 11 they must “neither be influenced by bias nor prejudice against the defendant, nor swayed by

12 public opinion or public feelings.” (CT 486, 489; see also RT 5146.) They were instructed

13 “not to make any independent investigat[ion] of the facts or the law or consider or discuss facts

14 as to which there is no evidence.” (RT 5146-47.) The jurors presumptively understood and

15 followed their instructions. Weeks, 528 U.S. at 234; see also Boyde, 494 U.S. at 381-85; Tan,

16 413 F.3d at 1115.

17 ii. Any Error was Non-Structural and Harmless 18 Petitioner argues the error is structural and reversible per se. (Doc. No. 51-1 ¶856; see 19 also Doc. No. 142 at 230.) 20 However, Petitioner has not demonstrated structural error because the state supreme 21 court reasonably could have found the jury was unaware of and did not consider during

22 deliberations facts underlying the felony burglary conviction, for the reasons stated.

23 Petitioner argues alternatively that the trial court’s error was more than harmless 24 because the alleged juror misconduct “so infected the integrity of the proceedings that the error

25 cannot be deemed harmless.” (Doc. No. 51-1 ¶ 856; see also Doc. No. 142 at 230.) Where the

26 constitutional error in issue is not structural, habeas relief is unavailable unless the error had a 27 substantial and injurious effect on the verdict. Brecht, 507 U.S. at 637-38.

28 186 1 Specifically, Petitioner argues the facts of the burglary and necrophilia were highly 2 inflammatory and prejudicial and likely biased the jury against Petitioner. (Doc. No. 142 at

3 230, citing McGuire, 425 U.S. at 505.)

4 If arguendo the jury considered extraneous evidence as alleged, Petitioner has not 5 shown on the factual record that absent that misconduct there is a reasonable probability he

6 would have avoided the death penalty. The state supreme court reasonably could find

7 Petitioner failed to identify specific facts underlying the prior felony burglary conviction to

8 which the jury allegedly was exposed and support inference of prejudice and bias arising

9 therefrom.

10 Moreover, the jury expressly was instructed to consider only evidence admitted at 11 court, (RT 5146), and presumably followed their instructions, Weeks, 528 U.S. at 234.

12 iii. Conclusions 13 The California Supreme Court was not unreasonable in denying allegations the jurors 14 engaged in prejudicial misconduct by considering extraneous evidence during deliberations.

15 Accordingly, the California Supreme Court’s rejection of this claim was not contrary 16 to, or an unreasonable application of, clearly established federal law, or an unreasonable

17 determination of the facts in light of the evidence presented in the state court proceeding. 28

18 U.S.C. § 2254(d).

19 Claim XX shall be denied. 20 D. Claims Relating to the Constitutionality of California’s Death Penalty 21 Statute

22 1. Legal Standards 23 A state capital sentencing system must: “(1) rationally narrow the class of death- 24 eligible defendants; and (2) permit a jury to render a reasoned, individualized sentencing

25 determination based on a death-eligible defendant’s record, personal characteristics, and the

26 circumstances of his crime.” Marsh, 548 U.S. at 173-74. If the “state system satisfies these 27 requirements,” then the “state enjoys a range of discretion in imposing the death penalty,

28 187 1 including the manner in which aggravating and mitigating circumstances are to be weighed.”

2 Id., (citing Franklin, 487 U.S. at 179), (Stephens, 462 U.S. at 875-876, n.13).

3 A state may narrow the class of murderers eligible for the death penalty by defining 4 degrees of murder. Sawyer v. Whitley, 505 U.S. 333, 342 (1992). A state may further narrow

5 the class of murderers by finding “beyond a reasonable doubt at least one of a list of statutory

6 aggravating factors.” Id.; see also Gregg, 428 U.S. at 196-97.

7 If the reviewing court finds constitutional error, it must additionally decide whether the 8 error had “had substantial and injurious effect or influence in determining [the] jury’s verdict,”

9 the test announced in Brecht. Coleman, 525 U.S. at 145-46.

10 State law error is not alone a basis for federal habeas relief. See Pulley, 465 U.S. at 41 11 (“A federal court may not issue the writ on the basis of a perceived error of state law.”).

12 2. Review of Claim XXV(A) 13 Petitioner alleges that California’s death penalty review process is influenced by 14 political and economic pressures resulting in arbitrary and capricious outcomes. (Doc. No. 51-

15 1 ¶ 902.)

16 a. Supplemental Legal Standards 17 Due process guarantees include the right to a fair trial by an impartial and unbiased 18 judge. Tumey v. Ohio, 273 U.S. 510, 535 (1927); see also In re Murchison, 349 U.S. 133, 136

19 (1955) (A “fair trial in a fair tribunal is a basic requirement of due process.”) 20 There is a “presumption of honesty and integrity in those serving as adjudicators” that 21 one must overcome in order to establish a claim of bias. Withrow v. Larkin, 421 U.S. 35, 47

22 (1975).

23 b. State Court Direct and Collateral Review 24 Petitioner presented this claim in the second state exhaustion petition (Lod. Doc. No. 30 25 at 357) and it was summarily denied on the merits (Lod. Doc. No. 31, Order Denying Cal. Exh.

26 Pet., In re Colin Raker Dickey, No. S165302 (May 29, 2012)). 27 c. Analysis 28 188 1 Petitioner argues “the California Supreme Court and federal courts have labored under 2 political and economic pressures which do not permit it to decide death penalty cases in a fair

3 and impartial manner, resulting in a capital sentencing scheme which is applied in an arbitrary

4 and capricious manner.” (Doc. No. 51-1 ¶ 902; see also Doc. No. 142 at 232.)

5 However, Petitioner does not point to clearly established law that political and 6 economic pressures result in arbitrary and capricious outcomes in death penalty cases.

7 Moreover, the claim is entirely conclusory. Petitioner does not identify on the factual 8 record political and economic pressures that made his trial unfair.

9 Petitioner’s related arguments lack merit. The California Supreme Court reasonably 10 determined that California’s death penalty scheme did not fail to genuinely narrow the class of

11 murderers eligible for the death penalty. As noted, California’s scheme, which narrows the

12 class of death eligible offenders to less than the definition of first-degree murder and permits

13 consideration of all mitigating evidence, has been approved by the Supreme Court, Tuilaepa,

14 512 U.S. at 972-79; Pulley, 465 U.S. at 38. See McKenzie v. Risley, 842 F.2d 1525, 1540-41

15 (1988) (noting that the Supreme Court has upheld the constitutionality of the death sentence for

16 felony murder where the defendant killed, attempted to kill or intended that lethal force be

17 used); Karis, 283 F.3d 1117 at 1141 n.11 (California’s sentencing scheme adequately narrows

18 the class of persons eligible for death).

19 In California v. Ramos, the United States Supreme Court stated that “once the jury 20 finds that the defendant falls within the legislatively defined category of persons eligible for

21 the death penalty” the jury’s consideration of a myriad of factors and exercise of “unbridled

22 discretion” in determining whether death is the appropriate punishment is not arbitrary and

23 capricious. 463 U.S. at 1008-09.

24 The sentencing discretion of Petitioner’s jury was “suitably directed and limited so as to 25 minimize the risk of wholly arbitrary and capricious action.” Gregg, 428 U.S. at 189. The jury

26 expressly was instructed to consider only evidence admitted at court, (RT 5146), and 27 presumably followed their instructions, Weeks, 528 U.S. at 234.

28 189 1 Petitioner has not demonstrated on the factual record any “substantial and injurious 2 effect or influence in determining [the] jury’s verdict,” under Brecht. Coleman, 525 U.S. at

3 145-46.

4 The state supreme court reasonably could find Petitioner failed to rebut the presumption 5 of honesty and integrity in those serving as adjudicators. Larkin, 421 U.S. at 47.

6 d. Conclusions 7 The California Supreme Court was not unreasonable in denying allegations California’s 8 death penalty process is unconstitutional due to political and economic pressures.

9 Accordingly, the California Supreme Court’s rejection of this claim was not contrary 10 to, or an unreasonable application of, clearly established federal law, or an unreasonable

11 determination of the facts in light of the evidence presented in the state court proceeding. 28

13 Claim XXV(A) shall be denied. 14 3. Review of Claim XXV(B) 15 Petitioner alleges that execution following lengthy confinement on death row would 16 constitute cruel and unusual punishment and violate international covenants, treaties, and

17 norms. (Doc. No. 51-1 ¶¶ 903-910.)

18 a. Supplemental Legal Standards 19 “[T]he Cruel and Unusual Punishments Clause prohibits the infliction of uncivilized 20 and inhuman punishments. The State, even as it punishes, must treat its members with respect

21 for their intrinsic worth as human beings. A punishment is ‘cruel and unusual,’ therefore, if it

22 does not comport with human dignity.” Furman, 408 U.S. at 270.

23 The mental suffering, demoralization, uncertainty and consequent psychological hurt 24 inherent in the punishment must be considered in interpreting Eighth Amendment. Id. at 271-

25 72.

26 An execution “cannot be so totally without penological justification that it results in the 27 gratuitous infliction of suffering.” Gregg, 428 U.S. at 183.

28 190 1 The assessment should be whether punishment is cruel and unusual in consideration of 2 the standards of decency that mark the progress of a maturing society, or standards of decency

3 that are more or less universally accepted. Id.

4 b. State Court Direct and Collateral Review 5 Petitioner presented this claim in the second state exhaustion petition (Lod. Doc. No. 30 6 at 357-60) and it was denied on the merits (Lod. Doc. No. 31, Order Denying Cal. Exh. Pet., In

7 re Colin Raker Dickey, No. S165302 (Cal. May 29, 2012)).

8 c. Analysis 9 Petitioner argues that execution following his 1989 arrest and continuous confinement 10 thereafter would amount to cruel and unusual punishment and violate international laws,

11 covenants, treaties, and norms. (Doc. No. 142 at 232.)

12 Petitioner argues the passage of time is not attributable to him. (Doc. No. 142 at 232- 13 33, citing Lackey v. Texas, 514 U.S. 1045 (1995) (mem. den. cert. Stevens, J.) (issue whether

14 execution following lengthy confinement violates the Eighth Amendment's prohibition against

15 cruel and unusual punishment would benefit from further study); see also Jones v. Chappell,

16 31 F. Supp. 3d, at 1050 (C.D. Cal. 2014), rev’d sub nom. Jones v. Davis, 806 F.3d 538 (9th Cir.

17 2015) (finding systemic delay in the administration of California’s death penalty renders any

18 ensuing executions arbitrary and violative of the Eighth Amendment).

19 Petitioner argues the passage of time has negated any penological and social benefit 20 from carrying out his death sentence. (Id., citing McKenzie v. Day, 57 F.3d 1461, 1484-89 (9th

21 Cir. 1995) (Norris, J., dissenting) (noting penological goals of retribution and deterrence are

22 attenuated by the passage of time, and the extraordinary psychological duress and extreme

23 physical and social restrictions on death row); see also Doc. No. 51-1 ¶ 909, citing Furman,

24 408 U.S. at 312 (White, J., concurring) (“[A] major goal of the criminal law - to deter others by

25 punishing the convicted criminal - would not be substantially served where the penalty is so

26 seldom invoked that it ceases to be the credible threat essential to influence the conduct of 27 others”); Gregg, 428 U.S. at 183 (“The sanction imposed cannot be so totally without

28 191 1 penological justification that it results in the gratuitous infliction of suffering”).

2 However, the California Supreme Court’s rejection of this claim was not unreasonable. 3 Petitioner does not cite any clearly established Supreme Court authority that a prolonged

4 detention is cruel and unusual punishment. See Allen v. Ornoski, 435 F.3d 946, 958-59 (9th

5 Cir. 2006) (“The Supreme Court has never held that execution after a long tenure on death row

6 is cruel and unusual punishment . . . Allen cannot credibly claim that there is any clearly

7 established law, as determined by the Supreme Court, which would support this . . . claim”);

8 see also McKenzie, 57 F.3d at 1494 (casting doubt that delays caused by satisfying the Eighth

9 Amendment can violate it); Smith v. Mahoney, 611 F.3d 978, 997-98 (9th Cir. 2010) (citing

10 McKenzie and finding Lackey claim barred by Teague v. Lane, 489 U.S. 299, 316 (1989));

11 People v. Taylor 26 Cal. 4th 1155, 1176-77 (2001) (rejecting claim that relatively lengthy

12 period of incarceration constitutes cruel and unusual punishment on grounds such delay is

13 necessary to permit careful appellate review).

14 As noted, Justice Stevens, in his memorandum respecting denial of certiorari in Lackey 15 suggested this issue needed further study. 514 U.S. 1045. Lackey indicates that the issue has

16 never been squarely addressed by the Supreme Court, nor have lower courts in the United

17 States given the issue ample consideration. Id.

18 Four years later, Justice Thomas stated in concurring on a denial of certiorari that: 19 I am unaware of any support in the American constitutional tradition or in this 20 Court’s precedent for the proposition that a defendant can avail himself of the panoply of appellate and collateral procedures and then complain when his 21 execution is delayed. 22

23 Knight v. Florida, 528 U.S. 990 (1999); see also Allen, 435 F.3d, at 958-59.

24 Since the Supreme Court has not decided the issue, the state court’s decision could not 25 be contrary to or an unreasonable application of Supreme Court precedent. Musladin, 549 U.S.

26 at 77; Sims v. Rowland, 414 F.3d 1148, 1153 (9th Cir. 2005) (same). 27 At least one other circuit has held that the time consumed by a petitioner’s direct and 28 192 1 collateral review proceedings “is a function of the desire of our courts, state and federal, to get

2 it right, to explore exhaustively, or at least sufficiently, any argument that might save

3 someone’s life.” Johns v. Bowersox, 203 F.3d 538, 547 (8th Cir. 2000) (quoting Chambers v.

4 Bowersox, 157 F.3d 560, 570 (8th Cir. 1998)).

5 d. Conclusions 6 The California Supreme Court was not unreasonable in denying allegations that 7 execution following lengthy confinement on death row is unconstitutional.

8 Accordingly, the California Supreme Court’s rejection of these allegations was not 9 contrary to, or an unreasonable application of, clearly established federal law, as determined by

10 the Supreme Court. 28 U.S.C. § 2254(d). Nor was the state court’s ruling based on an

11 unreasonable determination of the facts in light of the evidence presented in the state court

12 proceeding. Id.

13 Claim XXV(B) shall be denied. 14 4. Review of Claims XXV(C-D) 15 Petitioner alleges that California’s death penalty process fails to sufficiently narrow the 16 class of offenders who are eligible for death penalty and denies due process because: (i) county

17 prosecutors have unbounded discretion to charge the death penalty (i.e. claim XXV(C)), and

18 (ii) there is no distinguishing between death and non-death eligible first-degree murders (i.e.

19 claim XXV(D)). (Doc. No. 51-1 ¶¶ 911-934.) 20 a. Supplemental Legal Standards 21 A state capital sentencing system must rationally narrow the class of death-eligible 22 defendants and permit a jury to render a reasoned, individualized sentencing determination

23 based on a death-eligible defendant’s record, personal characteristics, and the circumstances of

24 his crime. Marsh, 548 U.S. at 173-74.

25 “Where discretion is afforded a sentencing body on a matter so grave as the 26 determination of whether a human life should be taken or spared, that discretion must be 27 suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious

28 193 1 action.” Gregg, 428 U.S. at 189.

2 If the reviewing court finds constitutional error, Petitioner must show the error had a 3 substantial and injurious effect or influence on the jury’s verdict pursuant to Brecht. Coleman,

4 525 U.S. at 145-46.

5 b. State Court Direct and Collateral Review 6 Petitioner presented claims XXV(C-D) on direct appeal and these claims were denied 7 on the merits. Dickey, 35 Cal. 4th at 931-32.

8 c. Analysis 9 Petitioner argues California’s statute is unconstitutionally vague, overbroad and 10 arbitrary, lacks proportionality, fails to narrow the class of death-eligible murderers, and vests

11 unbounded discretion in prosecutors. (Doc. No. 142 at 234-43, citing Stephens, 462 U.S. at

12 878; Furman, 408 U.S. at 249-57, 306-14; Lockett, 438 U.S. at 600-01.)

13 Petitioner points to California’s nearly thirty special circumstances as evidence that it 14 fails to “distinguish death-eligible and non-death-eligible first-degree murders in a meaningful

15 and non-arbitrary way.” (Doc. No. 142 at 242.)

16 Petitioner points to California’s lack of guidelines for its District Attorneys regarding 17 when to seek the death penalty as evidence the state has eliminated any “meaningful basis for

18 distinguishing the few cases in which it is imposed from the many cases in which it is not.”

19 (Doc. No. 51-1 ¶ 926, citing Furman, 408 U.S. at 313 (conc. opn. of White, J).) 20 The California Supreme Court, in denying these allegations on direct appeal stated that: 21 The death penalty law adequately narrows the class of death-eligible offenders. 22 (People v. Brown (2004) 33 Cal. 4th 382, 401, 15 Cal.Rptr.3d 624, 93 P.3d 244 (Brown ); Prieto, supra, 30 Cal. 4th at p. 276, 133 Cal.Rptr.2d 18, 66 P.3d 23 1123.) 24

25 […] 26 Nor is it defective in failing to require intercase proportionality review. (Brown, 27 supra, 33 Cal. 4th at p. 402, 15 Cal.Rptr.3d 624, 93 P.3d 244; Prieto, supra, 30 Cal. 4th at p. 276, 133 Cal.Rptr.2d 18, 66 P.3d 1123; People v. Lewis (2001) 26 28 194 Cal. 4th 334, 394–395, 110 Cal.Rptr.2d 272, 28 P.3d 34.) 1 The law is not constitutionally defective because the prosecutor retains 2 discretion whether or not to seek the death penalty. (Brown, supra, 33 Cal. 4th at p. 403, 15 Cal.Rptr.3d 624, 93 P.3d 244; Hughes, supra, 27 Cal. 4th at p. 404, 3 116 Cal.Rptr.2d 401, 39 P.3d 432.) 4 Dickey, 35 Cal. 4th at 931-32.

5 That court reasonably denied the claims, for the reasons discussed below. 6 i. Failure to Narrow 7 Petitioner argues that California’s statute fails to ensure “only the most deserving of 8 execution are put to death.” Atkins, 536 U.S. at 319. He revisits his argument California’s

9 death penalty scheme is contrary to Furman because it defines death eligibility so broadly that

10 it fails to ensure the constitutionally required “narrowing” function is performed. See Doc. No.

11 51-1 ¶¶ 915, 930, citing People v. Adcox, 47 Cal. 3d 207, 275-76 (1988) (dis. opn of

12 Broussard, J.); Gregg, 428 U.S. at 189 (“D]iscretion must be suitably directed and limited so

13 as to minimize the risk of wholly arbitrary and capricious action.”)

14 A death penalty law must narrow the class of death-eligible defendants and provide for 15 individualized penalty determination. McCleskey, 481 U.S. at 308.

16 However, under California’s death penalty statute, a defendant may be sentenced to 17 death for first degree murder if the trier of fact finds the defendant guilty and finds true one or

18 more of special circumstances listed in Penal Code section 190.2. As relevant here, one of the

19 circumstances is a robbery-murder special circumstance, which when applied to an aider and 20 abettor of the actual killer having a homicidal mens rea. (See CT 422-425; Penal Code

21 190.2(a)(17)); see also McKenzie, 842 F.2d at 1540-41 (noting that the Supreme Court has

22 upheld the constitutionality of the death sentence for felony murder where the defendant killed,

23 attempted to kill or intended that lethal force be used).

24 The California Supreme Court was not unreasonable in finding this sentencing scheme 25 satisfies clearly established constitutional requirements. See Karis, 283 F.3d at 1141 n.11

26 (California’s sentencing scheme adequately narrows the class of persons eligible for death). 27 First, the subclass of defendants eligible for the death penalty is rationally narrowed to those

28 195 1 who have the predicate felony of robbery. Tuilaepa, 512 U.S. at 969-73. The robbery special

2 circumstance sufficiently guides the sentencer and is not unconstitutionally vague. See 3 Godfrey, 446 U.S. at 428 (the sentencer’s discretion must be guided by “clear and objective

4 standards.”).

5 At the penalty phase, an individualized sentence includes consideration of the character 6 and record of the defendant, the circumstances of the crime, and an assessment of the

7 defendant’s culpability. Tuilaepa, 512 U.S. at 972-73. The jury “need not be instructed how to

8 weigh any particular fact in the capital sentencing decision.” Id. at 979.

9 Similarly, the Supreme Court in California v. Ramos stated that “once the jury finds 10 that the defendant falls within the legislatively defined category of persons eligible for the

11 death penalty” the jury’s consideration of a myriad of factors and exercise of “unbridled

12 discretion” in determining whether death is the appropriate punishment is not arbitrary and

13 capricious. 463 U.S. at 1008-09.

14 The California Supreme Court reasonably determined that California’s death penalty 15 scheme did not fail to genuinely narrow the class of murderers eligible for the death penalty.

16 California’s scheme, which narrows the class of death eligible offenders to less than the

17 definition of first-degree murder and permits consideration of all mitigating evidence, has been

18 approved by the Supreme Court. Tuilaepa, 512 U.S. at 972-79; Pulley, 465 U.S. at 38.

19 ii. Proportionality 20 Petitioner argues California’s death penalty statute is arbitrary due to lack of 21 proportionality review.

22 “Where discretion is afforded a sentencing body on a matter so grave as the 23 determination of whether a human life should be taken or spared, that discretion must be

24 suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious

25 action.” Gregg, 428 U.S. at 189.

26 The California Supreme Court considered and rejected Petitioner’s intercase 27 proportionality claim, stating that:

28 196 1 Nor is [California’s death penalty statute] defective in failing to require 2 intercase proportionality review. (Brown, supra, 33 Cal. 4th at p. 402, 15 Cal.Rptr.3d 624, 93 P.3d 244; Prieto, supra, 30 Cal. 4th at p. 276, 133 3 Cal.Rptr.2d 18, 66 P.3d 1123; People v. Lewis (2001) 26 Cal. 4th 334, 394–395, 110 Cal.Rptr.2d 272, 28 P.3d 34.) 4

5 Dickey, 35 Cal. 4th at 931.

6 For the reasons stated in claims XXV(G, L) post, summarized here, the proportionality 7 allegation fails. The state supreme court reasonably could find Petitioner’s alleged limited

8 participation in the crime as an aider and abettor of felony murder was not alone a basis to find

9 his death sentence arbitrary and disproportionate and not in furtherance of societal goals of

10 retribution and deterrence. (See Doc. No. 51-1 ¶ 957; Doc. No. 142 at 255-56.)

11 The Supreme Court, in Pulley v. Harris, found that the Eighth Amendment did not 12 require a “state appellate court, before it affirms a death sentence, to compare the sentence in

13 the case before it with the penalties imposed in similar cases if requested to do so by the

14 prisoner.” 465 U.S. at 43-44. The Supreme Court also held that “on its face, [California’s]

15 system, without any requirement or practice of comparative proportionality review, cannot be

16 successfully challenged under Furman v. Georgia, [408 U.S. 238 (1972)] and our subsequent

17 cases.” Pulley, 465 U.S. at 53.

18 The California Supreme Court specifically has rejected the intra-case and inter-case 19 proportionality claim in numerous cases. Lewis, 26 Cal. 4th, at 394-95; see also People v. 20 Sanchez, 12 Cal. 4th 1, 83-85 (1995), disapproved on other grounds by People v. Doolin, 45

21 Cal. 4th 390, 421 n.22 (2009); People v. Cox, 53 Cal. 3d 618, 690-91 (1991), disapproved on

22 other grounds by People v. Doolin, 45 Cal. 4th 390, 417 (2009).

23 Furthermore, Petitioner has not demonstrated that the jury in considering his aider and 24 abettor and lingering doubt defenses was prevented from considering all potential mitigating

25 factors. (See discussion of claims XII(E-H).)

26 For the reasons stated, the California Supreme Court was not unreasonable in denying 27 allegations that California’s death penalty statute and his death sentence are constitutionally

28 197 1 infirm due to alleged lack of proportionality.

2 iii. Prosecutorial Discretion 3 Petitioner argues that the unrestricted discretion in individual prosecutors may allow 4 reliance upon constitutionally irrelevant and impermissible considerations like race,

5 impermissible victim characteristics, and economic status. (Doc. No. 51-1 ¶¶ 915-918.) He

6 argues prosecutors may use their unrestricted discretion so as to violate separations of powers

7 and intrude upon the judicial prerogative of imposing sentences and exercising sentencing

8 discretion. (Doc. No. 51-1 ¶¶ 918-919, citing People v. Lang, 49 Cal. 3d 991, 1045 (1989),

9 abrogated by People v. Diaz on other grounds, 60 Cal. 4 th 1176, 1190 (2015) (discussing trial

10 court authority to impose sentence); see also Doc. No. 142 at 238, citing People v. Navarro,

11 497 P.2d 481, 487 (1972) (imposition of sentence and the exercise of sentencing discretion are

12 fundamentally and inherently judicial functions)); Cal. Const. Arts. 3, 6, § 1.

13 However, the Supreme Court has held that the mere existence of prosecutorial 14 discretion over charging decisions does not deny equal protection or render a capital

15 punishment scheme unconstitutional absent some showing that a particular decision was based

16 on a discriminatory standard. In rejecting a petitioner’s argument that the Georgia capital

17 punishment system operated in a discriminatory manner, the Supreme Court held, “absent a

18 showing that Georgia’s capital punishment system operates in an arbitrary and capricious

19 manner, [the petitioner] cannot prove a constitutional violation by demonstrating that other 20 defendants who may be similarly situated did not receive the death penalty.” McCleskey, 481

21 U.S. at 306-07.

22 Further, the Court has held that prosecutorial charging decisions are “particularly ill- 23 suited to judicial review.” Wayte v. United States, 470 U.S. 598, 607 (1985); see also

24 Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978) (“So long as the prosecutor has probable

25 cause to believe that the accused committed an offense defined by statute, the decision whether

26 or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely 27 in his discretion.”).

28 198 1 Prosecutorial discretion “is essential to the criminal justice process”, McCleskey, 481 2 U.S. at 297, and does not violate the federal Constitution. The Constitution forbids only

3 “purposeful discrimination” in the exercise of that prosecutorial discretion, id. at 292-93, and

4 in order to prevail in that regard, the Supreme Court emphasized that “we would demand

5 exceptionally clear proof before we would infer that the discretion has been abused.” Id. at

6 297. It follows that the fact California’s statutory scheme gives the prosecutor discretion does

7 not violate the United States Constitution. See 28 U.S.C. § 2254(a); Gregg, 428 U.S. at 225.

8 Petitioner does not suggest the prosecutor exercised discretion in a discriminatory 9 manner in his case. (Doc. No. 51-1 ¶¶ 911-927.) His reliance upon a concurring and 10 dissenting opinion by Justice McKeown in Morales v. Woodford, 388 F.3d 1159, 1185-88 (9th

11 Cir. 2004) relating to overbreadth of the lying-in-wait special circumstance (see Doc. No. 142

12 at 242), is not authority supporting his challenge to prosecutorial discretion.

13 d. Conclusions 14 The California Supreme Court was not unreasonable in denying allegations that 15 California’s death penalty statute fails to sufficiently narrow the class of offenders who are

16 eligible for death penalty.

17 Accordingly, the California Supreme Court’s rejection of these claims was not contrary 18 to, or an unreasonable application of, clearly established federal law, or an unreasonable

19 determination of the facts in light of the evidence presented in the state court proceeding. 28 20 U.S.C. § 2254(d).

21 Claims XXV(C-D) shall be denied. 22 5. Review of Claim XXV(E) 23 Petitioner alleges the Penal Code section 190.3 sentencing factors as stated in CALJIC 24 8.85 are vague and ambiguous and devoid of any burden of proof, leaving the jury’s sentencing

25 discretion unguided, violating his rights under the Fifth, Sixth, Eighth and Fourteenth

26 Amendments. (Doc. No. 51-1 ¶¶ 935-944.) 27 Specifically, Petitioner challenges CALJIC 8.85 to the extent it: (i) included 28 199 1 inapplicable sentencing factors, (ii) included vague and limiting mitigation terms such as

2 “extreme” and “substantial,” (iii) considered the existence of a special circumstance to be an

3 aggravating circumstance, (iv) failed to identify which factors were aggravating and which

4 were mitigating, and (v) failed to include any burden of proof. (Doc. No. 51-1 ¶ 936.)

5 a. Supplemental Legal Standards 6 A claim of instructional error requires a showing that the error “so infected the entire 7 trial that the resulting conviction violate[d] due process.” Kibbe, 431 U.S. at 154.

8 “[T]he proper inquiry . . . is whether there is a reasonable likelihood that the jury has 9 applied the challenged instruction” in an unconstitutional manner. Boyde, 494 U.S. at 380. A

10 reviewing court does not engage in a technical parsing of the instruction’s language, but

11 instead approaches the instructions in the same way that the jury would -- with a

12 “commonsense understanding of the instructions in the light of all that has taken place at the

13 trial.” Johnson, 509 U.S. at 368. In evaluating a claim of instructional error, a single

14 instruction is not viewed in isolation, but rather in the context of the overall charge. Spivey,

15 194 F.3d at 976. Federal courts presume that juries understand and follow instructions. Weeks,

16 528 U.S. at 234; see also Boyde, 494 U.S. at 381-85; Tan, 413 F.3d at 1115.

17 A state capital sentencing system must: “(1) rationally narrow the class of death- 18 eligible defendants; and (2) permit a jury to render a reasoned, individualized sentencing

19 determination based on a death-eligible defendant’s record, personal characteristics, and the 20 circumstances of his crime.” Marsh, 548 U.S. at 173-74. If the “state system satisfies these

21 requirements,” then the “state enjoys a range of discretion in imposing the death penalty,

22 including the manner in which aggravating and mitigating circumstances are to be weighed.”

23 Id., (citing Franklin, 487 U.S. at 179; Stephens, 462 U.S. at 875-876, n.13).

24 Even if constitutional instructional error has occurred, the federal court must still 25 determine whether petitioner suffered actual prejudice, that is, whether the error “had

26 substantial and injurious effect or influence in determining the jury’s verdict.” Brecht, 507 U.S. 27 at 637. A “substantial and injurious effect” means a “reasonable probability” that the jury

28 200 1 would have arrived at a different verdict had the instruction been given. Clark, 450 F.3d at

2 916.

3 b. State Court Direct and Collateral Review 4 Petitioner presented this claim on direct appeal and it was denied on the merits. Dickey, 5 35 Cal. 4th 928.

6 c. Analysis 7 Petitioner revisits his claim XII(E) (ineffective assistance of counsel) argument that the 8 CALJIC 8.85 instruction on Penal Code section 190.3 sentencing factors is unconstitutional on

9 multiple grounds. (See the discussion of claim XII(E) above; Doc. No. 142 at 243.)

10 As noted, the jury was instructed on the Penal Code 190.3 sentencing factors pursuant 11 to the standard CALJIC 8.85 instruction, that:

12 In determining which penalty is to be imposed on defendant, you shall consider 13 all of the evidence which has been received during any part of the trial of this case. You shall consider, take into account and be guided by the following 14 factors, if applicable: 15 (a) The circumstances of the crime of which the defendant was convicted in the present proceeding and the existence of any special circumstance[s] found to be 16 true. 17 (b) The presence or absence of criminal activity by the defendant, other than the crime[s] for which the defendant has been tried in the present proceedings, 18 which involved the use or attempted use of force or violence or the express or implied threat to use force or violence. 19 (c) The presence or absence of any prior felony conviction, other than the 20 crimes for which the defendant has been tried in the present proceedings. 21 (d) Whether or not the offense was committed while the defendant was under the influence of extreme mental or emotional disturbance. 22 (e) Whether or not the victim was a participant in the defendant's homicidal 23 conduct or consented to the homicidal act. 24 (f) Whether or not the offense was committed under circumstances which the defendant reasonably believed to be a moral justification or extenuation for his 25 conduct. 26 (g) Whether or not the defendant acted under extreme duress or under the substantial domination of another person. 27 (h) Whether or not at the time of the offense the capacity of the defendant to 28 201 appreciate the criminality of his conduct or to conform his conduct to the 1 requirements of law was impaired as a result of mental disease or defect or the effects of intoxication. 2 (i) The age of the defendant at the time of the crime. 3 (j) Whether or not the defendant was an accomplice to the offense and his 4 participation in the commission of the offense was relatively minor. 5 (k) Any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime and any sympathetic or other aspect 6 of the defendant's character or record that the defendant offers as a basis for a sentence less than death, whether or not related to the offense for which he is on 7 trial. You must disregard any jury instruction given to you in the guilt or innocence phase of this trial which conflicts with this principle. 8

9 (CT 498-499; see also RT 5150-5152.)

10 The California Supreme Court in denying the claim stated that: 11 Defendant contends the standard instruction given here with regard to the 12 factors the jury might take into account in determining the penalty (§ 190.3; CALJIC No. 8.85) failed to adequately guide its discretion, in violation of 13 defendant's rights under the Eighth and Fourteenth Amendments to the United States Constitution. 14 Defendant's various attacks on CALJIC No. 8.85 have been repeatedly rejected 15 by this court, and we conclude he gives us no compelling reason to reconsider our decisions. 16 CALJIC No. 8.85 does not encourage the double-counting of aggravating 17 factors. (People v. Lewis, supra, 25 Cal. 4th at p. 669, 106 Cal.Rptr.2d 629, 22 P.3d 392; People v. Ayala (2000) 24 Cal. 4th 243, 288–289, 99 Cal.Rptr.2d 532, 18 6 P.3d 193.) 19 The federal Constitution does not bar consideration of unadjudicated criminal activity. (Tuilaepa v. California (1994) 512 U.S. 967, 976–977, 114 S.Ct. 2630, 20 129 L.Ed.2d 750; People v. Marks (2003) 31 Cal. 4th 197, 237, 2 Cal.Rptr.3d 252, 72 P.3d 1222; People v. Anderson, supra, 25 Cal. 4th at p. 601, 106 21 Cal.Rptr.2d 575, 22 P.3d 347.) Moreover, defendant seems to complain the jury was permitted to consider prior criminal activity involving use or attempted use 22 of force, whereas the prosecutor candidly acknowledged to the jury, “There is no evidence at all of any previous violent activity on the part of [defendant].” 23 “[A] reasonable juror would readily have identified” the “emotional 24 disturbance” and “diminished capacity” factors as mitigating. (People v. Benson (1990) 52 Cal. 3d 754, 802, 276 Cal.Rptr. 827, 802 P.2d 330; see People v. 25 Williams (1997) 16 Cal. 4th 153, 268–269, 66 Cal.Rptr.2d 123, 940 P.2d 710; People v. McPeters (1992) 2 Cal. 4th 1148, 1191, 9 Cal.Rptr.2d 834, 832 P.2d 26 146.) “The presumption that the jurors in this case understood and followed the mitigation instruction supplied to them is not rebutted by empirical assertions to 27 the contrary based on research that is not part of the present record and has not been subject to cross-examination. [Citation.]” (Welch, supra, 20 Cal. 4th at p. 28 202 773, 85 Cal.Rptr.2d 203, 976 P.2d 754.)17 1

2 ----------------------------------------FOOTNOTE--------------------- 3 n.17 As here, the defendant in Welch relied upon an article “claiming that interviews with former jurors or with randomly selected subjects show that 4 many of the subjects failed to properly understand the concept of mitigation correctly after they had been given CALJIC No. 8.88. [Citations.]” (Welch, 5 supra, 20 Cal. 4th at pp. 772–773, 85 Cal.Rptr.2d 203, 976 P.2d 754.) 6 ------------------------------------END FOOTNOTE------------------ 7

8 Finally, failure to delete inapplicable statutory sentencing factors from CALJIC No. 8.85 as given did not violate defendant's rights under the federal 9 Constitution. (People v. Box (2000) 23 Cal. 4th 1153, 1217, 99 Cal.Rptr.2d 69, 5 P.3d 130; People v. Turner (1994) 8 Cal. 4th 137, 207–208, 32 Cal.Rptr.2d 10 762, 878 P.2d 521.) Likewise, the failure to identify which factors were aggravating and which mitigating was not error; the aggravating or mitigating 11 nature of the factors is self-evident within the context of each case. (People v. Hillhouse (2002) 27 Cal. 4th 469, 509, 117 Cal.Rptr.2d 45, 40 P.3d 754; see 12 Box, at p. 1217, 99 Cal.Rptr.2d 69, 5 P.3d 130.) 13 Dickey, 35 Cal. 4th at 927-28.

14 The California Supreme Court reasonably rejected the claim for the reasons discussed 15 below.

16 i. Inapplicable sentencing factors 17 Petitioner argues that instructing his jury on sentencing factors that were inapplicable 18 on the facts and circumstances of his case was prejudicial error.

19 However, Petitioner does not point to clearly established federal law that a jury may not 20 be instructed with all sentencing factors. The Supreme Court stated in Gregg v. Georgia:

21 The petitioner objects, finally, to the wide scope of evidence and argument 22 allowed at [penalty] hearings. We think that the Georgia court wisely has chosen not to impose unnecessary restrictions on the evidence that can be 23 offered at such a hearing and to approve open and far-ranging argument. So long as the evidence introduced and the arguments made at the [penalty] hearing 24 do not prejudice a defendant, it is preferable not to impose restrictions. We think it desirable for the jury to have as much information before it as possible when 25 it makes the sentencing decision. 26 27 428 U.S. at 203–04.

28 203 1 In addition, the Ninth Circuit has repeatedly rejected this claim. In Williams v. 2 Calderon, the Ninth Circuit stated:

3 Williams argues that it was error to read to the jury the entire list of factors the state considered relevant to the sentencing decision, even when some did not 4 apply. To the contrary, the jury instructions expressly indicated that the jury was to consider each factor only “if applicable.” Moreover, “[i]t seems clear ... that 5 the problem [of jury inexperience] will be alleviated if the jury is given guidance regarding the factors about the crime and the defendant that the State, 6 representing organized society, deems particularly relevant to the sentencing decision.” Gregg v. Georgia, 428 U.S. 153, 192, 96 S.Ct. 2909, 2934, 49 7 L.Ed.2d 859 (1976) (plurality opinion). The reading of the complete list gave the jury more guidance, not less. We find nothing in the Constitution prohibiting 8 the very practice Gregg encouraged. 9 52 F.3d at 1481.

10 Petitioner has not demonstrated any requirement that a trial court redact the instructions 11 to include only those factors deemed applicable. Moreover, the instruction itself advises the

12 jury to consider the factors “if applicable.” (CT 498); see Bonin, 59 F.3d 815, 848 (9th Cir.

13 1995) (“the cautionary words ‘if applicable’ warned the jury that not all of the factors would be

14 relevant and that the absence of a factor made it inapplicable rather than an aggravating

15 factor.”).

16 For the reasons stated, the California Supreme Court was not unreasonable in denying 17 allegations that California’s death penalty statute and his death sentence are constitutionally

18 infirm due to instruction on inapplicable sentencing factors.

19 ii. Vague and Limiting Mitigation Terms 20 Petitioner argues that CALJIC factor “d” (relating to Penal Code section 190.3(d)) 21 provides that only “extreme” mental and emotional disturbance is mitigating (see CT 498)

22 thereby unconstitutionally limiting the mitigation defense where the evidence supports a lesser

23 level of disturbance.13 (Doc. No. 142 at 244.) He argues jurors would have understood the

24 instructions in their totality to exclude mitigating evidence of non-severe mental or emotional

25 distress.

26 13 Penal Code section 190.3 provides in pertinent part that: “[I]n determining which penalty is to be imposed on defendant, you shall consider … take into account and be guided by the following factors, if applicable … (d) 27 whether or not the offense was committed while the defendant was under the influence of extreme mental or emotional disturbance.” 28 204 1 Petitioner further argues the catchall language in CALJIC factor “k”, which instructs 2 the jury pursuant to Penal Code section 190.3(k) that it may consider any extenuating

3 circumstance as well any sympathetic aspect of defendant’s character, does not cure this

4 deficiency because the jury might have understood factor “k” itself to be aggravating rather

5 than mitigating. (Id. at 244-45.)

6 The state supreme court presumably observed the jury received multiple pertinent 7 instructions. In addition to CALJIC 8.85 factor “d”, jurors were instructed: (i) to consider

8 “whether or not the defendant acted under extreme duress or under the substantial domination

9 of another person” (CALJIC 8.85(g); CT 499); see also Penal Code § 190.3(g)); (ii) that “in

10 determining which penalty is to be imposed on defendant, you shall consider all of the

11 evidence which has been received during any part of the trial of this case . . .” (CALJIC 8.85;

12 CT 498); (iii) that “a mitigating circumstance is any fact, condition or event which as such,

13 does not constitute a justification or excuse for the crime in question, but may be considered as

14 an extenuating circumstance in determining the appropriateness of the death penalty”

15 (CALJIC 8.88; CT 502); (iv) that they may consider “any other circumstance which extenuates

16 the gravity of the crime, even though it is not a legal excuse for the crime, and any sympathetic

17 or other aspect of the defendant’s character or record that the defendant offers as a basis for a

18 sentence less than death, whether or not related to the offense for which he is on trial”

19 (CALJIC 8.85; CT 499); and (v) to consider the penalty phase instructions as a whole (CALJIC 20 1.09; CT 487).

21 The Supreme Court has reviewed these instructions on several occasions and 22 consistently rejected claims they restrict the jury’s consideration of mitigating evidence. See,

23 e.g., Belmontes, 549 U.S. at 24; Brown, 544 U.S. at 133; Boyde, 494 U.S. at 370. Particularly,

24 the Supreme Court has stated that factor (k) directed the jury to consider “any other

25 circumstance that might excuse the crime. . . .” Boyde, 494 U.S. at 382.

26 The Ninth Circuit also has rejected this allegation where, as here, the jury was advised 27 it could consider any other mitigating matter. See Hendricks, 974 F.2d at 1109. Moreover, the

28 205 1 190.3 factors are not read in isolation. For example, factor (k) on its face allows the jury to

2 consider non-extreme mental or emotional conditions when read in conjunction with

3 instructions on factor (d). See Sanchez, 12 Cal. 4th, at 80.

4 “[T]he factor (k) instruction is consistent with the constitutional right to present 5 mitigating evidence in capital sentencing proceedings.” Belmontes, 549 U.S. at 24. Contrary

6 to Petitioner’s contention, the factor (k) instruction made it clear to the jurors that they should

7 consider any evidence of mental or emotional disturbance of any degree, if they believed there

8 was such evidence presented. See id. at 19-20 (same instructional language permitted 9 consideration of Belmontes’s mitigating evidence).

10 The state supreme court reasonably could find jurors would have understood the 11 instructions as a whole not to exclude mitigating evidence of non-severe mental or emotional

12 distress. As noted above, in evaluating a claim of instructional error, a single instruction is not

13 viewed in isolation, but rather in the context of the overall charge. Spivey, 194 F.3d at 976.

14 “[T]he proper inquiry . . . is whether there is a reasonable likelihood that the jury has applied

15 the challenged instruction” in an unconstitutional manner. Boyde, 494 U.S. at 380.

16 As noted, the Supreme Court has never required a sentencing court to instruct a jury on 17 how to weigh and balance factors in aggravation and mitigation. The Supreme Court has

18 stated that “a capital sentencer need not be instructed how to weigh any particular fact in the

19 capital sentencing decision.” Tuilaepa, 512 U.S. at 979; see also Marsh, 548 U.S. at 175 20 (quoting Franklin, 487 U.S. at 179) (citing Stephens, 462 U.S. at 875–876, n.13) (defendants

21 have the right to present relevant mitigating circumstances; although sentencers must consider

22 such circumstances, they need not be instructed on a specific method for balancing aggravating

23 and mitigating circumstances).

24 Additionally, Petitioner has not shown that the instructions in issue here precluded the 25 jury from considering mitigating value of evidence from the guilt phase. See Blystone, 494

26 U.S. at 307; Boyde, 494 U.S. at 377; see also McGuire, 502 U.S. at 72 (quoting Boyde, 494 27 U.S. at 380). Particularly, the facts and circumstances of Petitioner’s conviction as an aider

28 206 1 and abettor of felony murder were before the penalty phase jury.

2 The state supreme court reasonably could find Petitioner’s habeas proffer mental state 3 evidence, subject to discount for the reasons stated, lacked mitigating weight relating to

4 whether at the time of the crimes Petitioner suffered significant mental or emotional

5 disturbance. Nor does the record suggest he was under duress or domination of another during

6 the crime.

7 If the jury found the evidence showed that Petitioner’s actions as aider and abettor were 8 the result of mental or emotional disturbance of any degree, then CALJIC Nos. 8.85 and 8.88,

9 and particularly factor (k) of CALJIC No. 8.85, allowed the jury to consider it. Petitioner has

10 not demonstrated that the Constitution requires more. See Buchanan, 522 U.S. at 276 (as long

11 as state does not preclude jury from considering any constitutionally relevant mitigating

12 evidence, it need not “affirmatively structure in a particular way the manner in which juries

13 consider mitigating evidence.”).

14 iii. Special Circumstance as Aggravating Factor 15 Petitioner finds error in CALJIC 8.85 factor “a” which instructs on Penal Code section 16 190.3(a) that “the existence of any special circumstances found to be true pursuant to Section

17 190.1 is an aggravating factor to be considered at penalty phase.” He argues this language

18 unconstitutionally limits the mitigation defense because there will always be one established

19 aggravating factor. (Doc. No. 51-1 ¶ 937, citing Penry, 492 U.S. at 319 (jury must be able to 20 consider and give effect to mitigating evidence relevant to defendant’s background, character,

21 or circumstances of crime); see also Doc. No. 142 at 243.)

22 However, as discussed in claim III(G) above, Petitioner cannot demonstrate clearly 23 established federal law that duplicative aggravating circumstances violates his federal rights.

24 The same claim was rejected by the Supreme Court in Tuilaepa, wherein the Court concluded

25 that:

26 [T]he sentencer should consider the circumstances of the crime in deciding 27 whether to impose the death penalty . . . this California factor instructs the jury to consider a relevant subject matter and does so in understandable terms. The 28 207 circumstances of the crime are a traditional subject for consideration by the 1 sentencer, and an instruction to consider the circumstances is neither vague nor otherwise improper under our Eighth Amendment jurisprudence. 2

3 512 U.S. at 975-76.

4 Furthermore, the California Supreme Court has found that “[f]actor (a) of section 190.3 5 … does not impermissibly result in ‘double-counting’ or automatically create a bias in favor of

6 a death verdict.” Tully, 54 Cal. 4th at 1068.

7 As above, the Supreme Court has never required a sentencing court to instruct a jury on 8 how to weigh and balance factors in aggravation and mitigation. Tuilaepa, 512 U.S. at 978-79;

9 Marsh, 548 U.S. at 175.

10 Likewise, the California Supreme Court has repeatedly rejected this claim, as noted 11 above. See Lewis, 25 Cal. 4th at 669; Ayala, 24 Cal. 4th at 288-289.

12 Additionally, Petitioner has not shown “a reasonable likelihood that the jury applied the 13 challenged instruction in a way that prevented consideration of constitutionally relevant

14 evidence.” Johnson, 509 U.S. at 367 (quoting Boyde, 494 U.S. at 380). The state supreme

15 court reasonably could find “a commonsense understanding of the instructions in the light of

16 all that has taken place at the trial” suggested otherwise. Boyde, 494 U.S. at 381.

17 iv. Failure to identify aggravating and mitigating factors 18 Petitioner argues the jury was confused which sentencing factors were aggravating and 19 which were mitigating. (Doc. No. 142 at 243.) 20 Here again, states need not structure their jury instructions in any particular manner as 21 long as juries are given the opportunity to consider relevant mitigating evidence. Tuilaepa,

22 512 U.S. at 979-80; Lockett, 438 U.S. 586 at 604. “There is no . . . constitutional requirement

23 of unfettered sentencing discretion in the jury, and States are free to structure and shape

24 consideration of mitigating evidence in an effort to achieve a more rational and equitable

25 administration of the death penalty.” Boyde, 494 U.S. at 377 (quoting Franklin, 487 U.S. at

26 181). “[I]t must be recognized that the States may adopt capital sentencing processes that rely 27 upon the jury, in its sound judgment, to exercise wide discretion.” Tuilaepa, 512 U.S. at 974.

28 208 1 Petitioner fails to show clearly established authority from the United States Supreme 2 Court holding that a jury must be instructed in a particular manner. The Supreme Court has

3 upheld California’s instruction against constitutional challenge. See Belmontes, 549 U.S. at 24;

4 Payton, 544 U.S. at 141, 142; Boyde, 494 U.S. at 382.

5 The California Supreme Court also has consistently rejected this allegation. See, e.g., 6 People v. Osband, 13 Cal. 4th 622, 705 (1996) (noting it has “regularly rejected the contention

7 that the court must specify which factors of section 190.3 apply in mitigation and which in

8 aggravation”).

9 For the reasons stated, the California Supreme Court reasonably found it clearly 10 established that a sentencing court need not identify which factors are aggravating and which

11 are mitigating. Pulley, 465 U.S. at 51 and 53 n.14; Tuilaepa, 512 U.S. at 975-80. It follows

12 that the failure to identify whether factors are aggravating or mitigating is not contrary to or an

13 unreasonable application of Supreme Court authority. Id.; see also Musladin, 549 U.S. at 77;

14 Sims, 414 F.3d, at 1153.

15 The Ninth Circuit so concluded in Williams v. Calderon, i.e. that “the death penalty 16 statute’s failure to label aggravating and mitigating factors is constitutional.” 52 F.3d, at 1484-

17 1485. The Ninth Circuit has found California’s death penalty statute does not violate due

18 process by failure to label factors as aggravating or mitigating. Id.

19 v. Failure to Provide Burden of Proof 20 Petitioner argues the failure to provide the jury with a penalty phase standard of proof 21 was constitutional error. (Doc. No. 142 at 243; see claim XII(G), ante.)

22 However, the California Supreme Court reasonably rejected these allegations. “[A] 23 capital sentencer need not be instructed how to weigh any particular fact in the capital

24 sentencing decision.” Tuilaepa, 512 U.S. at 979. “Once the jury finds that the defendant falls

25 within the legislatively defined category of persons eligible for the death penalty . . . the jury

26 then is free to consider a myriad of factors to determine whether death is the appropriate 27 punishment.” Id. (quoting Ramos, 463 U.S. at 1008).

28 209 1 Apprendi is not implicated by California’s death penalty scheme because once a 2 California jury convicts of first-degree murder with a special circumstance “the defendant

3 stands convicted of an offense whose maximum penalty is death.” People v. Ochoa, 26 Cal. 4th

4 398, 454 (2001), abrogated on other grounds by People v. Harris, 43 Cal. 4th 1269, 1306,

5 1310 (2008); see also People v. Prieto, 30 Cal. 4th 226, 263 & n.14 (2003) (same). Ring is

6 inapposite for the same reasons Apprendi is inapplicable.

7 Notably, federal and state courts have rejected this allegation. See, e.g. Williams, 52 8 F.3d, at 1485; Carriger, 971 F.2d, at 334; Webb, 6 Cal. 4th, at 536; People v. Cudjo, 6 Cal. 4th

9 585, 634 (1993).

10 As discussed in claim XII(G) above, summarized here, under California law “neither 11 death nor life is presumptively appropriate or inappropriate under any set of circumstances, but

12 in all cases the determination of the appropriate penalty remains a question for each individual

13 juror.” Samayoa, 15 Cal. 4th, at 853. In Walton v. Arizona, a plurality of the United States

14 Supreme Court concluded that a defendant may constitutionally be required to establish by a

15 preponderance of the evidence the existence of mitigating circumstances. 497 U.S. at 649-651,

16 rev’d on other grounds by Ring, 536 U.S. at 589. This conclusion appears to militate against a

17 beyond a reasonable doubt standard. See, e.g., Carriger, 971 F.2d at 334 (citing Walton in

18 rejecting allegation that beyond a reasonable doubt standard applies in determining

19 appropriateness of death sentence and absence of mitigating circumstances). 20 The California Supreme Court has consistently rejected Petitioner’s argument because 21 as noted above the maximum penalty for one convicted of first-degree murder with a special

22 circumstance is death, see Penal Code section 190.2(a); see also Anderson, 25 Cal. 4th, at 589,

23 and the penalty phase findings regarding aggravating and mitigating circumstances do not

24 increase that maximum statutory penalty. See Prieto, 30 Cal. 4th, at 263; People v. Navarette

25 30 Cal. 4th 458, 520-21 (2003) (noting California Supreme Court repeatedly has rejected this

26 claim notwithstanding Ring). 27 The penalty phase findings in California are in the nature of moral and normative 28 210 1 determinations. The Supreme Court in upholding the constitutionality of California’s death

2 penalty scheme noted that at the penalty phase, the jury merely weighs the aggravating and

3 mitigating factors to determine whether a defendant eligible for the death penalty should be

4 sentenced to death. See Tuilaepa, 512 U.S. at 972. “Once the jury finds that the defendant

5 falls within the legislatively defined category of persons eligible for the death penalty . . . the

6 jury then is free to consider a myriad of factors to determine whether death is the appropriate

7 punishment.” Ramos, 463 U.S. at 1008). The jury is presumed to understand and follow the

8 trial court’s instructions. Weeks, 528 U.S. at 234.

9 For the reasons stated, the California Supreme Court reasonably found Petitioner was 10 not denied a fair trial by any failure to instruct on a burden of proof at the penalty phase. See

11 Dunckhurst, 859 F.2d at 114 (instructional error must so infect the entire trial that the

12 defendant was deprived of his right to a fair trial guaranteed by the due process clause of the

13 fourteenth amendment).

14 d. Conclusions 15 The California Supreme Court was not unreasonable in denying allegations 190.3 16 sentencing factors as stated in CALJIC 8.85 violated his federal rights.

17 Accordingly, the California Supreme Court’s rejection of this claim was not contrary 18 to, or an unreasonable application of, clearly established federal law, or an unreasonable

19 determination of the facts in light of the evidence presented in the state court proceeding. 28 20 U.S.C. § 2254(d).

21 Claim XXV(E) shall be denied. 22 6. Review of Claim XXV(F) 23 Petitioner alleges that his death sentence violates international law, treaties and precepts 24 of fundamental human rights, denying his rights under the Eighth and Fourteenth

25 Amendments. (Doc. No. 51-1 ¶¶ 945-951.)

26 a. Supplemental Legal Standards 27 Federal habeas relief lies for violations of the Constitution, laws, and treaties of the 28 211 1 United States. 28 U.S.C. § 2254(a). Federal courts may grant habeas relief to persons who are

2 in state custody as a result of judgment rendered in violation of the Constitution or laws or

3 treaties of the United States. 28 U.S.C. § 2241(c)(3).

4 “[T]he Cruel and Unusual Punishments Clause prohibits the infliction of uncivilized 5 and inhuman punishments. The State, even as it punishes, must treat its members with respect

6 for their intrinsic worth as human beings. A punishment is ‘cruel and unusual,’ therefore, if it

7 does not comport with human dignity.” Furman, 408 U.S. at 270.

8 The mental suffering, demoralization, uncertainty and consequent psychological hurt 9 inherent in the punishment must be considered in interpreting Eighth Amendment. Id. at 271,

10 272.

11 An execution “cannot be so totally without penological justification that it results in the 12 gratuitous infliction of suffering.” Gregg, 428 U.S. at 183.

13 The assessment should be whether punishment is cruel and unusual in consideration of 14 the standards of decency that mark the progress of a maturing society, or standards of decency

15 that are more or less universally accepted. Id.

16 b. State Court Direct and Collateral Review 17 Petitioner presented this claim on direct appeal and it was denied on the merits. Dickey, 18 35 Cal. 4th at 932.)

19 c. Analysis 20 Petitioner argues that his death sentence violates international treaties and norms. 21 (Doc. No. 142 at 246.)

22 The California Supreme Court in denying the allegation stated that: 23 Finally, “we need not consider whether a violation of state or federal 24 constitutional law would also violate international law, ‘because defendant has failed to establish the premise that his trial involved violations of state and 25 federal constitutional law....’ ( [People v. Jenkins, supra, 22 Cal. 4th at p.] 1055 [95 Cal.Rptr.2d 377, 997 P.2d 1044].) Moreover, had defendant shown 26 prejudicial error under domestic law, we would have set aside the judgment on that basis without recourse to international law.” (People v. Hillhouse, supra, 27 27 Cal. 4th at p. 511, 117 Cal.Rptr.2d 45, 40 P.3d 754; see Brown, supra, 33 Cal. 4th at pp. 403–404, 15 Cal.Rptr.3d 624, 93 P.3d 244; Burgener, supra, 29 Cal. 28 212 4th at p. 885, 129 Cal.Rptr.2d 747, 62 P.3d 1.) 1

2 Dickey, 35 Cal. 4th at 932.

3 Petitioner argues his death sentence is unconstitutional because it violates treaties 4 ratified by the United States as well as international legal norms underlying his federal rights.

5 (Doc. No. 51-1 ¶¶ 945-949; Doc. No. 142 at 246-48; see also AOB at claim XXXIII.)

6 Petitioner point to Articles VI (prohibiting the arbitrary deprivation of life) and VII 7 (prohibiting cruel, inhuman or degrading treatment or punishment) of the International

8 Covenant of Civil and Political Rights (hereinafter “ICCPR”) that was ratified by the United

9 States in 1990. (Doc. No. 142 at 246.) He argues the ICCPR prohibits his death sentence

10 given the improprieties in the capital sentencing process, conditions of incarceration, excessive

11 delays between sentencing and appointment of appellate counsel, and excessive delays

12 between sentencing and execution that are apparent in his case. (Id.; see also Doc. No. 51-1 ¶

13 947.)

14 Petitioner argues international norms are incorporated into the Fifth, Eighth, and 15 Fourteenth Amendments (see Doc. No. 142 at 247; see also Pratt & Morgan v. Attorney

16 General for Jamaica, 3 SLR 995, 2 AC 1, 4 All ER 769 (Privy Council 1993)) as guidance for

17 interpreting federal and state constitutional provisions, including the Eighth Amendment. See

18 Thompson v. Oklahoma, 487 U.S. 815, 830-31, 851-52 (1988); Soering v. United Kingdom,

19 161 Eur. Ct. H.R. (ser. A), at 34 [reprinted in 11 Eur. Hum. Rts. Rep. 439]. The European 20 Court in Soering, facing a decision whether to extradite an EU national to Virginia to face

21 capital murder charges, held that the protracted delays in carrying out death sentences in

22 Virginia, which it averaged at six to eight years, constituted inhuman and degrading

23 punishment in violation of Article 3 of The European Human Rights Convention Charter, a

24 provision that “enshrines one of the fundamental values of the democratic societies making up

25 the Council of Europe.” Soering, 161 Eur. Ct. H.R. (ser. A) at 26.

26 However, the California Supreme Court reasonably rejected the claim. Petitioner does 27 not point to clearly established federal law that the California death penalty violates

28 213 1 international law and that this alleged violation creates a cognizable claim on federal habeas

2 review. See Rowland v. Chappell, 902 F. Supp. 2d 1296, 1339 (N.D. Cal. 2012) (there is no

3 clearly established federal law holding that the California death penalty violates international

4 law, and that this alleged violation creates a cognizable claim on federal habeas review). To

5 the contrary, it appears that such challenges to imposition of the death penalty have been

6 repeatedly rejected, as follows:

7 In Coleman v. Mitchell, 268 F.3d 417 (6th Cir. 2001), for instance, the Sixth 8 Circuit explained that “the claim that international law completely bars this nation’s use of the death penalty is unsupportable since the United States is not 9 party to any treaty that prohibits capital punishment per se, and since total abolishment of capital punishment has not yet risen to the level of customary 10 international law.” Id., at 443 n.12. In Carter v. Chappell, 2013 WL 781910, (C.D. Cal. Mar. 1, 2013), the district court noted that “[c]learly established 11 federal law does not hold the death penalty to violate international law or the federal Constitution.” Similarly, in Rowland v. Chappell, 902 F. Supp. 2d 1296, 12 1339 (N.D. Cal. 2012), the district court rejected an essentially identical claim, stating that “Petitioner cannot demonstrate that any claim of a violation of 13 international law is even cognizable on federal habeas review, given that such review is designed to address claims that a Petitioner is in custody in violation 14 of the Constitution or laws or treaties of the United States.” “International law is not United States law, and Petitioner does not demonstrate that the International 15 Covenant of Civil and Political Rights creates a form of relief enforceable in United States courts.” Id. 16

17 Ervin v. Davis, No. 00-CV-01228-LHK, 2016 WL 3253942, at *12 (N.D. Cal. June 14, 2016);

18 see also Buell v. Mitchell, 274 F.3d 337, 370-76 (6th Cir. 2001) (rejecting challenge to death

19 sentence based international laws such as the noted American Declaration, International 20 Covenant, and customary international law norms); Am. Baptist Churches in the U.S.A. v.

21 Meese, 712 F. Supp. 756, 770 (N.D. Cal. 1989) (treaties that are not self-executing do not

22 provide a basis for private lawsuit absent appropriate implementing legislation); Brewer v.

23 Hall, 378 F.3d 952, 955 (9th Cir. 2004) (“If no Supreme Court precedent creates clearly

24 established federal law relating to the legal issue the habeas Petitioner raised in state court, the

25 state court’s decision cannot be contrary to or an unreasonable application of clearly

26 established federal law.”). 27 Furthermore, Petitioner lacks standing to invoke the jurisdiction of international law. 28 214 1 The principles of international law apply to disputes between sovereign governments and not

2 between individuals. Hanoch Tel-Oren, 517 F. Supp. at 545-47. It is only when a treaty is

3 self-executing, that is, when it prescribes rules by which private rights may be determined, that

4 it may be relied on for the enforcement of such rights. Dreyfus v. Von Finck, 534 F.2d 24, 30

5 (2d Cir. 1976) (disavowed on other grounds by Filaratiga v. Pena-Irala, 630 F.2d 876, 884-85

6 (2d Cir. 1980)).

7 In determining whether a treaty is self-executing, courts look to the following factors: 8 (i) the language and purpose of the agreement as a whole, (ii) the circumstances surrounding its

9 execution, (iii) the nature of the obligations imposed by the agreement, (iv) the availability and

10 feasibility of alternative enforcement mechanisms, (v) the implications of permitting a private

11 right of action, and (vi) the capability of the judiciary to resolve the dispute. Frolova v. Union

12 of Soviet Socialist Republics, 761 F.2d 370, 373 (7th Cir. 1985); see also People of Saipan v.

13 United States Dept. of Interior, 502 F.2d 90, 97 (9th Cir. 1974) (“The extent to which an

14 international agreement establishes affirmative and judicially enforceable obligations without

15 implementing legislation must be determined in each case by reference to many contextual

16 factors: the purposes of the treaty and the objectives of its creators, the existence of domestic

17 procedures and institutions appropriate for direct implementation, the availability and

18 feasibility of alternative enforcement methods, and the immediate and long-range social

19 consequences of self- or non-self-execution.”). 20 The California Supreme Court reasonably could find unpersuasive Petitioner’s 21 inferential argument the treaty upon which he relies is self-executing. (See 28 U.S.C. §

22 2254(a); Medellin, 544 U.S. at 664; see also Sosa, 542 U.S. at 734-35; Jamison, 100 F. Supp.

23 2d at 766 (International Covenant on Civil and Political Rights is not self-executing); People v.

24 Ghent, 43 Cal. 3d 739, 778-79 (1987) (United Nations charter does not supersede domestic

25 legislation); Brown, 33 Cal. 4th, at 404 (“International law does not prohibit a sentence of

26 death rendered in accordance with state and federal constitutional and statutory requirements. 27 [Citations.]”).

28 215 1 The California Supreme Court specifically has rejected international law as a basis for 2 finding unconstitutional capital punishment and the lengthy delays it can entail. See People v.

3 Bolden 29 Cal. 4th 515, 567 (2002) (“[W]e are not persuaded that international law prohibits a

4 sentence of death rendered in accordance with state and federal constitutional and statutory

5 requirements.”

6 Even if the ICCPR were viewed as self-executing, its provisions do not prohibit the 7 death penalty, but rather merely limit its application including as to arbitrary deprivation of life

8 and execution of the severely mentally ill. See e.g., Atkins, 536 U.S. at 316 n.21 (death penalty

9 held unconstitutional for the intellectually disabled); see also Roper v. Simmons, 543 U.S. 551,

10 575 (2005) (in holding death penalty unconstitutional for minors, the Court noted that it has

11 “referred to the laws of other countries and to international authorities as instructive for its

12 interpretation of the Eighth Amendment’s prohibition of ‘cruel and unusual punishments.”).

13 Finally, to the extent Petitioner supports alleged international law violations with the 14 claims stated in this proceeding, those claims all fail for the reasons stated above and below.

15 d. Conclusions 16 The California Supreme Court was not unreasonable in denying allegations that 17 Petitioner’s death sentence violates international law, treaties and precepts of fundamental

18 human rights, denying his federal rights.

19 Accordingly, the California Supreme Court’s rejection of this claim was not contrary 20 to, or an unreasonable application of, clearly established federal law, or an unreasonable

21 determination of the facts in light of the evidence presented in the state court proceeding. 28

22 U.S.C. § 2254(d).

23 Claim XXV(F) shall be denied. 24 7. Review of Claims XXV(G, L) 25 Petitioner alleges that California’s death penalty process is unconstitutional on its face 26 because it does not provide for inter-case and intra-case proportionality review (i.e. claim 27 XXV(G)), and unconstitutional as applied to him because his death sentence is not proportional

28 216 1 to his personal responsibility and moral guilt (i.e. claim XXV(L)), violating his rights under the

2 Fifth, Sixth, Eighth and Fourteenth Amendments (Doc. No. 51-1 ¶¶ 952-958, 977-980).

3 a. Supplemental Legal Standards 4 “Where discretion is afforded a sentencing body on a matter so grave as the 5 determination of whether a human life should be taken or spared, that discretion must be

6 suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious

7 action.” Gregg, 428 U.S. at 189. A death penalty law must narrow the class of death-eligible

8 defendants and provide for individualized penalty determination. McCleskey, 481 U.S. at 308.

9 If the reviewing court finds constitutional error, it must additionally decide whether the 10 error had “[a] substantial and injurious effect or influence in determining [the] jury’s verdict,”

11 under Brecht. Coleman, 525 U.S. at 145-46.

12 b. State Court Direct and Collateral Review 13 Petitioner presented claim XXV(G) on direct appeal and it was denied on the merits. 14 Dickey, 35 Cal. 4th at 931. This claim also was presented in the second state exhaustion

15 petition as a part of claim XIV(C) (Lod. Doc. No. 30 at 360-64) and denied on the merits.

16 (Lod. Doc. No. 31, Order Denying Cal. Pet., In re Colin Raker Dickey, No. S165302 (May 29,

17 2012)).

18 Petitioner presented claim XXV(L) on direct appeal and it was denied on the merits. 19 Dickey, 35 Cal. 4th at 931. 20 c. Analysis 21 Petitioner argues that the failure of California’s death penalty statute to provide for a 22 proportionate sentence violates the Constitution on multiple grounds. (Doc. No. 142 at 248.)

23 He argues the lack of proportionality review denies him: (i) equal protection because

24 proportionality review is afforded California’s non-capital defendants (Doc. No. 51-1 ¶ 953;

25 see also Penal Code § 1170(f) [repealed]), (ii) a fair and reliable sentence following the jury’s

26 consideration of all potential mitigating factors and meaningful appellate review (Doc. No. 142 27 at 248), and (iii) a sentence proportionate to his personal responsibility and moral guilt (see

28 217 1 Doc. No. 142 at 255).

2 The California Supreme Court considered and rejected these allegations, stating: 3 Nor is [California’s death penalty statute] defective in failing to require 4 intercase proportionality review. (Brown, supra, 33 Cal. 4th at p. 402, 15 Cal.Rptr.3d 624, 93 P.3d 244; Prieto, supra, 30 Cal. 4th at p. 276, 133 5 Cal.Rptr.2d 18, 66 P.3d 1123; People v. Lewis (2001) 26 Cal. 4th 334, 394–395, 110 Cal.Rptr.2d 272, 28 P.3d 34.) 6

7 Dickey, 35 Cal. 4th at 931.

8 Petitioner supports the claims by pointing to the facts and circumstances of this case 9 including his limited role as an aider and abettor whose intent was only to “aid R.C. to

10 perpetrate a simple robbery/burglary upon the two elderly victims – one who freely dispensed

11 cash to R.C. on a regular basis.” (Doc. No. 142 at 255.) He argues there is no proof that he

12 undertook any act in aid of the killings. (See Doc. No. 51-1 ¶ 978.) He also points to the

13 possibility of third-party liability and suggests that he showed remorse for the crime. (Id.)

14 Based thereon, Petitioner argues his death sentence does not further societal goals of 15 retribution and deterrence and is arbitrary and disproportionate. (Id.; see also Doc. No. 51-1 ¶

16 957; Doc. No. 142 at 250.)

17 However, the California Supreme Court reasonably could find Petitioner’s claims 18 foreclosed by the Supreme Court’s decision in Pulley v. Harris. Therein, the Supreme Court

19 reviewed California’s death penalty procedure and considered the fact that California did not 20 require any sort of comparative proportionality review. The Supreme Court found that the

21 Eighth Amendment did not require a “state appellate court, before it affirms a death sentence,

22 to compare the sentence in the case before it with the penalties imposed in similar cases if

23 requested to do so by the prisoner.” Pulley, 465 U.S. at 43-44.

24 The Supreme Court also held that “on its face, [California’s] system, without any 25 requirement or practice of comparative proportionality review, cannot be successfully

26 challenged under Furman v. Georgia, [408 U.S. 238 (1972)] and our subsequent cases.” 27 Pulley, 465 U.S. at 53. The Supreme Court considered and upheld California’s 1977 scheme

28 218 1 where “a person convicted of first-degree murder is sentenced to life imprisonment unless one

2 or more special circumstances are found, in which case the punishment is either death or life

3 imprisonment without parole”, Pulley, 465 U.S. at 51; “the judge is required to state on the

4 record the reasons for his findings [denying a] motion for modification [of the verdict]”, id. at

5 53; and “there is an automatic appeal [from denial of a motion for modification]”, id. at 53.

6 The California Supreme Court specifically has rejected the intra-case and inter-case 7 proportionality claim in numerous cases. Lewis, 26 Cal. 4th at 394-95; see also Sanchez, 12

8 Cal. 4th at 83-85; Cox, 53 Cal. 3d at 692.

9 As discussed above, California’s 1978 death penalty satisfies constitutional 10 requirements by narrowing the class of death-eligible defendants and providing for an

11 individualized penalty determination. McCleskey, 481 U.S. at 308; Rodriguez, 42 Cal. 3d 730,

12 777-779 (1986). The Supreme Court and the California Supreme Court have rejected 13 proportionality review.

14 Additionally, Petitioner has not demonstrated constitutional error in his death eligibility 15 (see Doc. No. 135 denying guilt phase claims) or that he was denied an individualized death

16 sentence, for the reasons stated ante and post.

17 d. Conclusions 18 The California Supreme Court was not unreasonable in denying Petitioner’s allegations 19 that California’s death penalty statute and his death sentence are constitutionally infirm due to 20 alleged lack of proportionality.

21 The state supreme court’s rejection of these claims was not contrary to, or an 22 unreasonable application of, clearly established federal law, as determined by the Supreme

23 Court. 28 U.S.C. § 2254(d). Nor was that court’s ruling based on an unreasonable 24 determination of the facts in light of the evidence presented in the state court proceeding. Id.

25 Claims XXV(G, L) shall be denied. 26 8. Review of Claims XXV(H-I) 27 Petitioner alleges that California’s death penalty process is unconstitutional because it 28 219 1 fails to require that the jury’s sentence determination (i.e. claim XXV(H)) and weighing of

2 aggravating and mitigating factors (i.e. claim XXV(I)) be made unanimously and beyond a

3 reasonable doubt. (Doc. No. 51-1 ¶¶ 959-970.)

4 a. Supplemental Legal Standards 5 “[T]he Due Process Clause protects the accused against conviction except upon proof 6 beyond a reasonable doubt of every fact necessary to constitute the crime with which he is

7 charged.” In re Winship, 397 U.S. 358, 364 (1970).

8 Claims of instructional error will constitute a violation of due process under the 9 Fourteenth Amendment only where the alleged error by itself infects the entire trial to such an

10 extent that the resulting conviction violates due process. Naughten, 414 U.S. at 147; see also

11 DeChristoforo, 416 U.S. at 643.

12 “[T]he proper inquiry . . . is whether there is a reasonable likelihood that the jury has 13 applied the challenged instruction” in an unconstitutional manner. Boyde, 494 U.S. at 380. A

14 reviewing court does not engage in a technical parsing of the instruction’s language, but

15 instead approaches the instructions in the same way that the jury would -- with a

16 “commonsense understanding of the instructions in the light of all that has taken place at the

17 trial.” Johnson, 509 U.S. at 368. In evaluating a claim of instructional error, a single

18 instruction is not viewed in isolation, but rather in the context of the overall charge. Spivey,

19 194 F.3d at 976. Federal courts presume that juries understand and follow instructions. Weeks, 20 528 U.S. at 234; see also Boyde, 494 U.S. at 381-85; Tan, 413 F.3d at 1115.

21 A state capital sentencing system must: “(1) rationally narrow the class of death- 22 eligible defendants; and (2) permit a jury to render a reasoned, individualized sentencing

23 determination based on a death-eligible defendant’s record, personal characteristics, and the

24 circumstances of his crime.” Marsh, 548 U.S. at 173-74. If the “state system satisfies these

25 requirements,” then the “state enjoys a range of discretion in imposing the death penalty,

26 including the manner in which aggravating and mitigating circumstances are to be weighed.” 27 Id., (citing Franklin, 487 U.S. at 179; Stephens, 462 U.S. at 875-876, n.13).

28 220 1 Even if constitutional instructional error has occurred, the federal court must still 2 determine whether petitioner suffered actual prejudice, that is, whether the error “had

3 substantial and injurious effect or influence in determining the jury’s verdict.” Brecht, 507 U.S.

4 at 637. A “substantial and injurious effect” means a “reasonable probability” that the jury

5 would have arrived at a different verdict had the instruction been given. Clark, 450 F.3d at

6 916.

7 b. State Court Direct and Collateral Review 8 Petitioner presented claims XXV(H) and XXV(I) on direct appeal and the claims were 9 denied on the merits. Dickey, 35 Cal. 4th at 929-31.

10 c. Analysis 11 Petitioner argues as he did in claims XII(G-H) and XXV(E), ante, that the failure to 12 require sentencing findings be made unanimously and beyond a reasonable doubt denied him

13 federal rights. (Doc. No. 142 at 250-53.)

14 Petitioner supports the argument by pointing to: (i) alleged ambiguity in the weighing 15 instructions (CALJIC 8.85, 8.88), and (ii) Ring v. Arizona and Apprendi v. New Jersey which

16 he contends require the jury make sentencing findings unanimously and beyond a reasonable

17 doubt (i.e. finding beyond a reasonable doubt that at least one aggravating factor exists and that

18 such aggravating factor(s) outweigh any and all mitigating factors and that death is the

19 appropriate punishment).14 20 However, the California Supreme Court was not unreasonable in denying these 21 allegations.

22 i. Weighing Instructions Were Not Ambiguous 23 Petitioner argues CALJIC 8.88: (i) improperly suggested that jurors use a quantitative 24 weighing process, (ii) confused jurors on the definitions of “aggravating” and “mitigating”; and

25 (iii) used ambiguous terminology preventing the jury from selecting LWOP where a single

26 mitigating factor was found. (Doc. No. 142 at 218-20; see also CT 502-503.) He argues these 27 14 The jury was instructed that an aggravating prior criminal conviction must be proven beyond a reasonable 28 doubt. (See CT 500.) 221 1 errors left the jury impermissible “open-ended discretion” regarding imposition of the death

2 penalty, reducing the prosecution’s burden of proof. (Doc. No. 142 at 218-20); see also

3 Cartwright, 486 U.S. at 361-62 (“Claims of vagueness directed at aggravating circumstances

4 defined in capital punishment statutes are analyzed under the Eighth Amendment and

5 characteristically assert that the challenged provision fails adequately to inform juries what

6 they must find to impose the death penalty and as a result leaves them and appellate courts with

7 the kind of open-ended discretion which was held invalid in Furman.”).

8 Here, the trial court instructed the jury on CALJIC 8.88, in pertinent part as follows: 9 [[To] “return a judgment of death, each of you must be persuaded that the 10 aggravating evidence and/or circumstances is so substantial in comparison with the mitigating circumstances that it warrants death instead of life without 11 parole.”] 12 (CT 502-503.)

13 [I]n weighing the various circumstances you determine under the relevant 14 evidence which penalty is justified and appropriate by considering the totality of the aggravating circumstances with the totality of the mitigating circumstances. 15

16 (CT 502-503; see also Doc. No. 142 at 219.)

17 An aggravating factor is any fact, condition or event attending the commission 18 of a crime which increases its guilt or enormity, or adds to its injurious consequences which is above and beyond the elements of the crime itself. 19 A mitigating circumstance is any fact, condition or event which as such, does 20 not constitute justification or excuse for the crime in question, but may be considered as an extenuating circumstance in determining the appropriateness of 21 the death penalty. 22 (CT 502.)

23 The California Supreme Court found CALJIC 8.88 was not impermissibly vague and 24 did not improperly reduced the prosecution’s burden of proof, stating that:

25 Defendant contends giving the standard instruction on the weighing of 26 aggravating and mitigating factors (CALJIC No. 8.88) violated his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States 27 Constitution. We have repeatedly rejected similar claims, and defendant gives us no compelling reason to reconsider our decisions. 28 222 1 “Defendant contends that the standard instruction on the weighing of mitigating and aggravating factors was impermissibly vague and misleading in that it failed 2 to inform the jury that unless it found that the factors in aggravation outweighed the factors in mitigation, it could not impose a sentence of death, and in that it 3 failed to inform the jury that if factors in mitigation outweighed those in aggravation, it must impose a sentence of life in prison without the possibility of 4 parole. He also complains that the instruction's direction that before the jury may return a verdict of death, it must find that the aggravating circumstances 5 are ‘so substantial’ as to warrant a sentence of death and not life imprisonment without possibility of parole, was vague and led to arbitrary decision-making. 6 He claims violation of his right to due process of law and to a reliable and nonarbitrary penalty determination under the Eighth Amendment of the United 7 States Constitution. [¶] We repeatedly have rejected identical claims and decline defendant's invitation to reconsider our prior rulings. [Citations.]” (People v. 8 Catlin (2001) 26 Cal. 4th 81, 174, 109 Cal.Rptr.2d 31, 26 P.3d 357 (Catlin ).) 9 Defendant also contends the standard instruction, in referring to the “totality” of the aggravating and mitigating circumstances, erroneously implied a single 10 mitigating circumstance could not outweigh any and all aggravating circumstances. However, the instruction was not susceptible of this 11 interpretation. (People v. Berryman (1993) 6 Cal. 4th 1048, 1099–1100, 25 Cal.Rptr.2d 867, 864 P.2d 40.) 12 Finally, no instruction defining life imprisonment without possibility of parole 13 was required. (People v. Hughes (2002) 27 Cal. 4th 287, 405, 116 Cal.Rptr.2d 401, 39 P.3d 432 (Hughes ).) 14

15 Dickey, 35 Cal. 4th at 929.

16 Here, the California Supreme Court reasonably denied the allegations of ambiguity in 17 the weighing process. CALJIC 8.88 is not inherently quantitative and does not implicitly

18 weigh in favor of death because it addresses the weight of the totality of circumstances rather

19 than the weight of any one circumstance. (See Doc. No. 142 at 219; see also CT 502-03.) The 20 jury was instructed against “mere mechanical counting” of factors; they were instructed that

21 they could assign “whatever moral and sympathetic value” they deemed appropriate to any of

22 the factors. (CT 502-503; RT 5154.) The jury was instructed that “[i]n weighing the various

23 circumstances you determine under the relevant evidence which penalty is justified and

24 appropriate by considering the totality of the aggravating circumstances with the totality of the

25 mitigating circumstances.” (Id.)

26 CALJIC 8.88 is not unconstitutionally vague and confusing because it uses the terms 27 “aggravating,” “mitigating,” “mitigating circumstance,” and “extenuating.” (See Doc. No. 142

28 223 1 at 220.) The state supreme court reasonably could find the plain meaning of these terms as

2 argued to the jury made it unlikely vagueness prevented consideration of constitutionally

3 relevant evidence in sentence determination. (See RT 5134-40; Boyde, 494 U.S. at 377, 380;

4 Blystone, 494 U.S. at 307.

5 As noted, a reviewing court approaches the instructions in the same way that the jury 6 would, with a “commonsense understanding of the instructions in the light of all that has taken

7 place at the trial.” Johnson, 509 U.S. at 368. It can be presumed that the jury followed the

8 instructions, including the cautionary instructions. Weeks, 528 U.S. at 234. Notably, the jury

9 did not ask the trial court to clarify the meaning of these terms.

10 There is no clearly established authority from the United States Supreme Court holding 11 that a jury must be instructed in a particular manner. The Eighth Amendment does not require

12 that a jury be instructed on particular statutory mitigating factors. Buchanan, 522 U.S. at 275-

13 77.

14 For the reasons stated, the California Supreme Court reasonably rejected Petitioner’s 15 allegations relating to ambiguity in the weighing instruction.

16 ii. No Requirement to Instruct on Burden of Proof 17 Petitioner argues CALJIC 8.88 failed to instruct the jury that the prosecution must 18 prove the relative substantiality of the aggravating circumstances beyond a reasonable doubt.

19 He argues as he did above in claim XII(G) that the presence of an aggravating factor equates to 20 an element of capital murder in California, subject to the protections of Ring. (See Doc. No.

21 51-1 ¶ 960.) Based thereon, he argues the jury should have been instructed that before a death

22 verdict could be returned, the jury was required to find that: (i) any aggravating factors upon

23 which it relied were true beyond a reasonable doubt; and (ii) the aggravating factor or factors

24 outweighed the mitigating factors beyond a reasonable doubt. (Doc. No. 142 at 223.)

25 The California Supreme Court in denying the claim stated that: 26 Defendant contends failure to instruct the jury that the reasonable doubt 27 standard governs the penalty determination violated his rights under the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution. We have 28 224 rejected the identical contention, and defendant gives us no reason to reconsider 1 our decision. 2 “Defendant claims that it is unconstitutional to impose a sentence of death unless the aggravating circumstances outweigh the mitigating circumstances 3 beyond a reasonable doubt. This claim was first rejected by our court in People v. Rodriguez [(1986)] 42 Cal. 3d [730,] 777–779 [230 Cal.Rptr. 667, 726 P.2d 4 113], and has been rejected ever since. (See, e.g., [People v.] Snow [(2003)] 30 Cal. 4th [43,] 125–127 [132 Cal.Rptr.2d 271, 65 P.3d 749]; Burgener, supra, 29 5 Cal. 4th at p. 884, fn. 7 [129 Cal.Rptr.2d 747, 62 P.3d 1]; People v. Gutierrez (2002) 28 Cal. 4th 1083, 1150–1151 [124 Cal.Rptr.2d 373, 52 P.3d 572]; Clair, 6 supra, 2 Cal. 4th at p. 691 [7 Cal.Rptr.2d 564, 828 P.2d 705].) As we recently stated: ‘The Constitution does not require the jury to find beyond a reasonable 7 doubt that a particular factor in aggravation exists, that the aggravating factors outweighed the mitigating factors, or that death was the appropriate penalty.’ 8 (Burgener, supra, 29 Cal. 4th at p. 884 [129 Cal.Rptr.2d 747, 62 P.3d 1].)” (People v. Cox (2003) 30 Cal. 4th 916, 971, 135 Cal.Rptr.2d 272, 70 P.3d 277.) 9 Defendant acknowledges this court has previously rejected similar arguments. 10 However, as did the defendant in Cox, defendant “asks us to reconsider this position in light of two recent United States Supreme Court cases, Apprendi v. 11 New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435], and Ring v. Arizona (2002) 536 U.S. 584 [122 S.Ct. 2428, 153 L.Ed.2d 556]. Specifically, 12 defendant argues that the two cases read together mandate that the aggravating circumstances necessary for the jury's imposition of the death penalty be found 13 beyond a reasonable doubt. We disagree. As this court recently stated in [People v.] Snow, supra, 30 Cal. 4th at page 126, footnote 32 [132 Cal.Rptr.2d 271, 65 14 P.3d 749]: ‘We reject that argument for the reason given in People v. Anderson [, supra,] 25 Cal. 4th [at pp.] 589–590, footnote 14 [106 Cal.Rptr.2d 575, 22 15 P.3d 347]: “[U]nder the California death penalty scheme, once the defendant has been convicted of first degree murder and one or more special 16 circumstances has been found true beyond a reasonable doubt, death is no more than the prescribed statutory maximum for the offense; the only alternative is 17 life imprisonment without possibility of parole. (§ 190.2, subd. (a).) Hence, facts which bear upon, but do not necessarily determine, which of these two 18 alternative penalties is appropriate do not come within the holding of Apprendi.” The high court's recent decision in Ring v. Arizona [, supra,] 536 19 U.S. 584 [122 S.Ct. 2428, 153 L.Ed.2d 556] does not change this analysis. Under the Arizona capital sentencing scheme invalidated in Ring, a defendant 20 convicted of first-degree murder could be sentenced to death if, and only if, the trial court first found at least one of the enumerated aggravating factors true. (Id. 21 at p. 603 [122 S.Ct. 2428].) Under California's scheme, in contrast, each juror must believe the circumstances in aggravation substantially outweigh those in 22 mitigation, but the jury as a whole need not find any one aggravating factor to exist. The final step in California capital sentencing is a free weighing of all the 23 factors relating to the defendant's culpability, comparable to a sentencing court's traditionally discretionary decision to, for example, impose one prison sentence 24 rather than another. Nothing in Apprendi or Ring suggests the sentencer in such a system constitutionally must find any aggravating factor true beyond a 25 reasonable doubt.’ (Accord, People v. Smith (2003) 30 Cal. 4th 581, 642 [134 Cal.Rptr.2d 1, 68 P.3d 302]; People v. Prieto (2003) 30 Cal. 4th 226, 275 [133 26 Cal.Rptr.2d 18, 66 P.3d 1123] [(Prieto )].)” (People v. Cox, supra, 30 Cal. 4th at pp. 971–972, 135 Cal.Rptr.2d 272, 70 P.3d 277.) 27

28 225 1 Dickey, 35 Cal. 4th at 929-31.

2 The California Supreme Court reasonably denied the claim because the holdings in 3 Ring and Apprendi are not implicated by California’s death penalty scheme. As that court

4 observed, once a California jury convicts of first-degree murder with a special circumstance

5 “the defendant stands convicted of an offense whose maximum penalty is death.” Ochoa, 26

6 Cal. 4th at 454. It follows that the penalty phase findings regarding aggravating and mitigating

7 circumstances do not increase that maximum statutory penalty. See Navarette 30 Cal. 4th at

8 520-21 (noting California Supreme Court repeatedly has rejected this claim notwithstanding

9 Ring).

10 As discussed in claim XXV(E), ante, in California the determination of the appropriate 11 penalty remains a question for each individual juror, Samayoa, 15 Cal. 4th, at 853, militating

12 against a beyond a reasonable doubt standard. See Walton, 497 U.S. at 649-651, rev’d on other

13 grounds by Ring, 536 U.S. at 589; Carriger, 971 F.2d at 334 (citing Walton in rejecting

14 allegation that beyond a reasonable doubt standard applies in determining appropriateness of

15 death sentence and absence of mitigating circumstances).

16 The penalty phase findings in California are in the nature of moral and normative 17 determinations. The Supreme Court in upholding the constitutionality of California’s death

18 penalty scheme noted that at the penalty phase, the jury merely weighs the aggravating and

19 mitigating factors to determine whether a defendant eligible for the death penalty should be 20 sentenced to death. See Tuilaepa, 512 U.S. at 972. “Once the jury finds that the defendant

21 falls within the legislatively defined category of persons eligible for the death penalty . . . the

22 jury then is free to consider a myriad of factors to determine whether death is the appropriate

23 punishment.” Ramos, 463 U.S. at 1008).

24 For the reasons stated, the California Supreme Court reasonably rejected Petitioner’s 25 allegations relating to the failure to instruct on a burden of proof at the penalty phase.

26 iii. No Requirement to Instruct on Unanimity 27 Petitioner argues CALJIC 8.88 failed to instruct the jury that unanimity is required on 28 226 1 sentencing findings. (Doc. No. 142 at 251-53.) He again relies upon Ring and Apprendi in

2 arguing that findings in aggravation serve to increase the penalty beyond the statutory

3 maximum and therefore must be confirmed by unanimous vote of all jurors.

4 The California Supreme Court in denying the claim on direct appeal stated that: 5 Nor is the jury constitutionally required to achieve unanimity as to aggravating 6 factors. (Brown, supra, 33 Cal. 4th at p. 402, 15 Cal.Rptr.3d 624, 93 P.3d 244; People v. Jenkins (2000) 22 Cal. 4th 900, 1053, 95 Cal.Rptr.2d 377, 997 P.2d 7 1044.) 8 Dickey, 35 Cal. 4th at 931.

9 The California Supreme Court reasonably denied the claim because Ring and Apprendi 10 are not implicated by California death penalty process, for the reasons stated. Petitioner was

11 not being tried for the conduct adduced at the penalty phase. Thus, the unanimity safeguard

12 was unnecessary. Aggravating circumstances are not separate penalties but are standards to

13 guide the making of the moral and normative choice between death and life imprisonment. A

14 factor set forth in Penal Code section 190.3 does not require a “yes” or “no” answer to a

15 specific question but points the sentencer to the subject matter guiding the choice between the

16 two punishments. Tuilaepa, 512 U.S. at 975. Again, a jury may exercise unbridled discretion

17 at the sentencing phase. Ramos, 463 U.S. at 1008 n.22 (quoting Stephens, 462 U.S. at 875).

18 The California Supreme Court has repeatedly rejected the contention that unanimity is 19 required as to aggravating circumstances. See, e.g., Prieto, 30 Cal. 4th, at 265 (Ring does not 20 require jury to unanimously make such finding beyond reasonable doubt because Ring does not

21 affect California’s death penalty scheme); Brown, 33 Cal. 4th at 402 (jury unanimity as to

22 aggravating circumstances, including unadjudicated criminal activity involving force or

23 violence, is not constitutionally required, Ring and Apprendi have not altered the California

24 Supreme Court’s conclusions regarding burden of proof or jury unanimity).

25 d. Conclusions 26 Petitioner has not demonstrated federal constitutional error arising from the failure to 27 require the jury’s death determination and weighing of aggravating and mitigating factors to be

28 227 1 made unanimously and beyond a reasonable doubt.

2 Accordingly, the state court rejection of these claims was not contrary to, or an 3 unreasonable application of, clearly established federal law, as determined by the Supreme

4 Court. 28 U.S.C. § 2254(d). Nor was the state court’s ruling based on an unreasonable

5 determination of the facts in light of the evidence presented in the state court proceeding. Id.

6 Claims XXV(H-I) shall be denied. 7 9. Review of Claim XXV(J) 8 Petitioner alleges the penalty phase jury instructions in their entirety were 9 unconstitutionally vague, violating his rights under the Fifth, Sixth, Eighth and Fourteenth

10 Amendments. (Doc. No. 51-1 ¶¶ 971-972.)

11 a. Supplemental Legal Standards 12 A claim of instructional error requires a showing that the error “so infected the entire 13 trial that the resulting conviction violate[d] due process.” Kibbe, 431 U.S. at 154.

14 “[T]he proper inquiry . . . is whether there is a reasonable likelihood that the jury has 15 applied the challenged instruction” in an unconstitutional manner. Boyde, 494 U.S. at 380. A

16 reviewing court does not engage in a technical parsing of the instruction’s language, but

17 instead approaches the instructions in the same way that the jury would -- with a

18 “commonsense understanding of the instructions in the light of all that has taken place at the

19 trial.” Johnson, 509 U.S. at 368. 20 In evaluating a claim of instructional error, a single instruction is not viewed in 21 isolation, but rather in the context of the overall charge. Spivey, 194 F.3d at 976. Federal

22 courts presume that juries understand and follow instructions. Weeks, 528 U.S. at 234; see also

23 Boyde, 494 U.S. at 381-85; Tan, 413 F.3d at 1115.

24 “Where discretion is afforded a sentencing body on a matter so grave as the 25 determination of whether a human life should be taken or spared, that discretion must be

26 suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious 27 action.” Gregg, 428 U.S. at 189.

28 228 1 A state capital sentencing system must: “(1) rationally narrow the class of death- 2 eligible defendants; and (2) permit a jury to render a reasoned, individualized sentencing

3 determination based on a death-eligible defendant’s record, personal characteristics, and the

4 circumstances of his crime.” Marsh, 548 U.S. at 173-74. If the “state system satisfies these

5 requirements,” then the “state enjoys a range of discretion in imposing the death penalty,

6 including the manner in which aggravating and mitigating circumstances are to be weighed.”

7 Id. (citing Franklin, 487 U.S. at 179; Stephens, 462 U.S. at 875-876, n.13).

8 Even if constitutional instructional error has occurred, the federal court must still 9 determine whether petitioner suffered actual prejudice, that is, whether the error “had

10 substantial and injurious effect or influence in determining the jury’s verdict.” Brecht, 507

11 U.S. at 637. A “substantial and injurious effect” means a “reasonable probability” that the jury

12 would have arrived at a different verdict had the instruction been given. Clark, 450 F.3d at 916.

13 b. State Court Direct and Collateral Review 14 Petitioner presented this claim on direct appeal and it was denied on the merits. Dickey, 15 35 Cal. 4th at 928-32.

16 c. Analysis 17 Petitioner revisits allegations in claims III(G), XII(D-H), XXV(E, G, H, I & L) ante, 18 and re-argues and relitigates the penalty phase instructional claims. Particularly, he argues

19 CALJIC 8.85 provided impermissibly vague direction and failed to properly guide juror 20 discretion in sentence selection. (Doc. No. 51-1 ¶ 972; see also Doc. No. 142 at 253-54.) He

21 suggests the errant instructions allowed the jury to assign aggravating weight to mitigating

22 evidence, consider less than all the mitigating evidence, and deny him a reliable and

23 individualized sentence.

24 However, the California Supreme Court was not unreasonable in rejecting the claim for 25 the reasons stated above in the discussion of claims III(G), XII(D-H), XXV(E, G, H, I & L).

26 Particularly, the case law-based instructions omitted were not constitutionally required; the 27 instructions given were not unconstitutionally vague, arbitrary and capricious; and the jury’s

28 229 1 sentencing determinations need not have been unanimous and beyond a reasonable doubt.

2 States need not structure their jury instructions in any particular manner provided juries 3 are given the opportunity to consider relevant mitigating evidence. Tuilaepa, 512 U.S. at 979-

4 80 (“[S]entencer may be given unbridled discretion in determining whether the death penalty

5 should be imposed after it has found that the defendant is a member of the class made eligible

6 for that penalty.”); Buchanan, 522 U.S. at 276 (as long as state does not preclude jury “from

7 giving effect to any relevant mitigating evidence,” it need not “affirmatively structure in a

8 particular way the manner in which juries consider mitigating evidence.”). The state supreme

9 court reasonably could find the penalty instructions in their entirety did not prevent Petitioner’s

10 jury from considering relevant mitigating evidence, for the reasons stated.

11 d. Conclusions 12 The California Supreme Court was not unreasonable in denying allegations that the 13 penalty phase jury instructions in their entirety were unconstitutionally vague.

14 Accordingly, the state supreme court’s rejection of the claim was not contrary to, or an 15 unreasonable application of, clearly established federal law, as determined by the Supreme

16 Court. 28 U.S.C. § 2254(d). Nor was the state court’s ruling based on an unreasonable

17 determination of the facts in light of the evidence presented in the state court proceeding. Id.

18 Claim XXV(J) shall be denied. 19 10. Review of Claim XXV(K) 20 Petitioner alleges that California’s death penalty statute is unconstitutional because it 21 does not require written findings of aggravating circumstances, preventing meaningful

22 appellate review, violating his rights under the Fifth, Eighth, and Fourteenth Amendments.

23 (Doc. No. 51-1 ¶¶ 973-976.)

24 a. Supplemental Legal Standards 25 See section VII, D, 9, a, ante. 26 b. State Court Direct and Collateral Review 27 Petitioner presented this claim on direct appeal and it was denied on the merits. Dickey, 28 230 1 35 Cal. 4th at 931.

2 c. Analysis 3 Petitioner argues that without written findings the reliability of the sentencing verdict 4 cannot be meaningfully tested on appeal. (Doc. No. 142 at 254-55.) He argues that “[w]ithout

5 some memorialization of the basis for the jury’s exercise of its discretion, courts cannot

6 “reconstruct the findings of the state trier of fact.” (Doc. No. 142 at 255, citing Townsend, 372

7 U.S. at 315 (1963).) He argues the error was more than harmless. (Doc. No. 142 at 255.)

8 The California Supreme Court in denying the claim on direct appeal stated that: 9 The absence of a requirement that the jury make written findings does not 10 render the law unconstitutional. (Brown, supra, 33 Cal. 4th at p. 402, 15 Cal.Rptr.3d 624, 93 P.3d 244; Prieto, supra, 30 Cal. 4th at p. 275, 133 11 Cal.Rptr.2d 18, 66 P.3d 1123; People v. Ochoa (2001) 26 Cal. 4th 398, 462, 110 Cal.Rptr.2d 324, 28 P.3d 78.) 12

13 Dickey, 35 Cal. 4th at 931.

14 The California Supreme Court was not unreasonable in denying the claim. Written 15 findings by the jury regarding the death penalty are not required by the United States

16 Constitution. Walton, 497 U.S. at 647-48, overruled on other grounds in Ring, 536 U.S. 584;

17 see also Williams, 52 F.3d, at 1484-85. Especially so as “the United States Supreme Court has

18 never stated that a beyond-a-reasonable-doubt standard is required when determining whether a

19 death penalty should be imposed.” Harris, 692 F.2d at 1195. The California Supreme Court 20 “has repeatedly held that [written findings on aggravating factors] are not required.” Sanchez,

21 12 Cal. 4th, at 82; accord Harris, 692 F.2d at 1195-96.

22 Rather, all that is federally required is an “adequate basis for appellate review.” Harris, 23 692 F.2d 1196. As discussed above in claim XI, in California the trial court’s express reasons

24 for its findings in ruling on the automatic motion for modification provide the “adequate basis”

25 for appellate review. Id.; see also Diaz, 3 Cal. 4th at 571-573; claim XI, ante. That was the

26 case here. The California Supreme Court noted the adequacy of the sentencing findings in the 27 record on the motion for modification, stating that:

28 231 1 And contrary to defendant's claims, the court carefully reviewed the evidence 2 bearing on each of the aggravating and mitigating factors and clearly explained why it found the aggravating factors substantially outweighed the mitigating 3 factors. Defense counsel urged defendant's culpability was only that of an aider and abettor. The court agreed Cullumber was the “major culprit,” but noted the 4 evidence showed defendant's role was “not minor.” Defense counsel brought up defendant's “drug use.” However, there was no evidence, the court observed, 5 defendant was under the influence of drugs at the time of the offenses. Defense counsel noted the remorse defendant had shown when confessing to Gail 6 Goldman. However, the court observed that defendant's expression of remorse on that occasion was triggered by the television story concerning the crime, and 7 that he had shown no remorse immediately after the murders, but rather had grandly purchased drugs for all of his housemates with the money he had stolen. 8 The circumstances of the crime—that defendant participated in the brutal murders of his elderly victims to obtain money to buy drugs—was, the court 9 stated, the most significant aggravating factor. 10 Apparently, the court did neglect to direct the clerk to enter the reasons for its ruling on the application in the minutes. However, the reporter's transcript 11 provides an entirely adequate basis for review, and so it is not reasonably possible that this failure to comply with a statutory directive prejudiced 12 defendant. 13 Dickey, 35 Cal. 4th at 933.

14 Thus, the California procedure provides a sufficient record for appellate review by 15 requiring the judge to provide a written statement upholding or overturning the jury’s verdict

16 without requiring written findings by the jury on the aggravating circumstances. The 17 California procedure was approved by the Supreme Court in Pulley v. Harris, where it was

18 stated:

19 If the jury finds the defendant guilty of first-degree murder and finds at least 20 one special circumstance, the trial proceeds to a second phase to determine the appropriate penalty. Additional evidence may be offered and the jury is given a 21 list of relevant factors. § 190.3. “After having heard all the evidence, the trier of fact shall consider, take into account and be guided by the aggravating and 22 mitigating circumstances referred to in this section, and shall determine whether the penalty shall be death or life imprisonment without the possibility of 23 parole.” Ibid. If the jury returns a verdict of death, the defendant is deemed to move to modify the verdict. § 190.4(e). The trial judge then reviews the 24 evidence and, in light of the statutory factors, makes an “independent determination as to whether the weight of the evidence supports the jury’s 25 findings and verdicts.” Ibid. The judge is required to state on the record the reasons for his findings. Ibid. If the trial judge denies the motion for 26 modification, there is an automatic appeal. §§ 190.4(e), 1239(b). The statute does not require comparative proportionality review or otherwise describe the 27 nature of the appeal. [Footnote omitted.] It does state that the trial judge’s refusal to modify the sentence “shall be reviewed.” § 190.4(e). This would seem 28 232 to include review of the evidence relied on by the judge. As the California 1 Supreme Court has said, “the statutory requirements that the jury specify the special circumstances which permit imposition of the death penalty, and that the 2 trial judge specify his reasons for denying modification of the death penalty, serve to assure thoughtful and effective appellate review, focusing upon the 3 circumstances present in each particular case.” People v. Frierson, 25 Cal. 3d 142, 179, 158 Cal. Rptr. 281, 302, 599 P.2d 587, 609 (1979)…. 4 The jury’s “discretion is suitably directed and limited so as to minimize the risk 5 of wholly arbitrary and capricious action.” Gregg, 428 U.S. at 189, 96 S.Ct., at 2932. Its decision is reviewed by the trial judge and the California Supreme 6 Court. On its face, this system, without any requirement or practice of comparative proportionality review, cannot be successfully challenged under 7 Furman and our subsequent cases. 8 465 U.S. at 51-53.

9 The state supreme court reasonably could find that nothing further is constitutionally 10 required, and Petitioner does not point to any clearly established Supreme Court precedent

11 stating otherwise. Williams, 52 F.3d, at 1484 (California’s statute “ensures meaningful 12 appellate review”); see also Brown, 479 U.S. at 543; Bonin, 794 F. Supp. at 987-88.

13 To the extent Petitioner relies upon Townsend in surmising that absent written findings 14 the jury could have rested its decision to impose death on improper considerations, he fails to

15 demonstrate that case holds a jury is required to make written findings regarding aggravating

16 circumstances. 372 U.S. 293.

17 d. Conclusions 18 The California Supreme Court was not unreasonable in denying allegations California’s 19 death penalty statute is unconstitutional because it does not require written findings of 20 aggravating circumstances.

21 Accordingly, the state court rejection of the claim was not contrary to, or an 22 unreasonable application of, clearly established federal law, as determined by the Supreme

23 Court. 28 U.S.C. § 2254(d). Nor was the state court’s ruling based on an unreasonable

24 determination of the facts in light of the evidence presented in the state court proceeding. Id.

25 Claim XXV(K) shall be denied. 26 E. Claims Relating to Sufficiency of the Evidence 27 1. Legal Standards 28 233 1 A federal habeas court reviews challenges to the sufficiency of the evidence by 2 determining whether in “viewing the evidence in a light most favorable to the prosecution, any

3 rational trier of fact could have found the essential elements of the crime beyond a reasonable

4 doubt.” Lewis v. Jeffers, 497 U.S. 764, 781 (1990); see also Payne v. Borg, 982 F.2d 335, 338

5 (9th Cir. 1992).

6 “A reviewing court must consider all of the evidence admitted by the trial court, 7 regardless whether that evidence was admitted erroneously.” McDaniel v. Brown, 558 U.S.

8 120, 131 (2010).

9 Sufficiency of the evidence claims raised in § 2254 proceedings must be measured with 10 reference to substantive requirements as defined by state law. Jackson v. Virginia, 443 U.S.

11 307, 324 n.16 (1979); see also Richey, 546 U.S. at 76 (federal court is bound by “a state court’s

12 interpretation of state law[.]”).

13 In cases where the evidence is unclear or would support conflicting inferences, the 14 federal court “must presume -- even if it does not affirmatively appear in the record -- that the

15 trier of fact resolved any such conflict in favor of the prosecution and must defer to that

16 resolution.” Jackson, 443 U.S. at 326.

17 AEDPA adds another layer of deference over the already deferential Jackson standard. 18 Under AEDPA, the federal court may not grant a habeas petition unless it finds that the state

19 court unreasonably applied the principles underlying the Jackson standard when reviewing the 20 Petitioner’s claim. See, e.g., Juan H. v. Allen, 408 F.3d 1262, 1275 n.12 (9th Cir. 2005); Jones

21 v. Wood, 114 F.3d 1002, 1013 (9th Cir. 1997) (recognizing that “unreasonable application”

22 standard applies to insufficient evidence claim). “Expressed more fully, this means a

23 reviewing court faced with a record of historical facts that supports conflicting inferences must

24 presume -- even if it does not affirmatively appear in the record -- that the trier of fact resolved

25 any such conflicts in favor of the prosecution and must defer to that resolution.” McDaniel,

26 558 U.S. at 133. 27 2. Review of Claim XXVII 28 234 1 Petitioner argues that his death sentence is unconstitutional because it is based on 2 inaccurate, unreliable and insufficient evidence presented at both the guilt phase and the

3 penalty phase. (Doc. No. 51-1 ¶¶ 990-994; Doc. No. 142 at 256-58.)

4 a. State Court Direct and Collateral Review 5 Petitioner raised this claim in his second state exhaustion petition (Lod. Doc. No. 30 at 6 364-66) which was summarily denied on the merits and on procedural grounds (Lod. Doc. No.

7 31, Order Denying Cal. Pet., In re Colin Raker Dickey, No. S165302 (May 29, 2012)).

8 b. Analysis 9 i. Insufficient Evidence at the Guilt Phase 10 Petitioner argues his conviction and special circumstance findings were supported by 11 insufficient evidence. Particularly, he points to alleged “false testimony of two drug-addicted

12 witnesses and an incomplete presentation of the exculpatory physical evidence” (Doc. No. 51-1

13 ¶ 993), and “scientifically suspect expert testimony [and] self-serving testimony by police

14 officers.” (Doc. No. 142 at 257.)

15 However, this Court previously considered and denied guilt phase claims alleging: (i) 16 ineffectiveness of Schultz and Hart; (ii) inadequate guilt phase defense; (iii) insufficient

17 evidence supporting the prosecution’s guilt phase case; and (iv) actual innocence. (See e.g.,

18 Doc. No. 135 discussing guilt claims II(A), II(B), II(C)], XII, XVIII, XIX, XXII, XXVI, and

19 XXVIII.) The Court, in its prior order stated that: 20 [T]he state supreme court could reasonably have concluded that the crimes 21 resulted from the joint motive of R.C. and petitioner to obtain money and property from victims Caton and Freiri (RT 4325, 4352, 4360-62); that R.C. and 22 petitioner armed themselves (RT 4343-50) with the intent to kill victims who were frail and aged, (RT 4239-41); that the victims knew the perpetrators and 23 could have identified them to authorities (RT 4311-13); and that the jury was properly instructed on the charges. (See claims XII and XXVI, post.) 24 Accordingly, the state supreme court was not unreasonable in finding a rational 25 trier of fact could have found the essential elements of the crimes charged beyond a reasonable doubt. 26 27 (Doc. No. 135 at 40.)

28 235 1 The Court went on to state that: 2 [I]t is not likely any reasonable juror would have reasonable doubt that the 3 essential elements of the criminal counts could have been found beyond a reasonable doubt, for reasons stated in claims XXVI and XXVIII. Petitioner’s 4 allegations that false evidence was presented, evidence was suppressed and destroyed and third parties were involved in the crimes appear insufficiently 5 supported in the evidentiary record at a level greater than harmless error. (See claims II(B), II(C), II(S), XIII.) Moreover, no facts or discrepancies in the 6 testimony and physical evidence establish or compel the conclusion that Buchanan was motivated to and did testify falsely or inaccurately (see claims 7 II(E), XIII and XVII), or that Goldman, by virtue of her alleged substance addiction, was motivated to and did testify falsely or inaccurately (see claims 8 II(L), XXI). 9 Significantly, petitioner’s confession to Buchanan and Goldman and the uncontroverted testimony of Buchanan and Goldman inculpating petitioner is 10 consistent with the noted physical evidence (see claims II(B), II(C), II(L), II(S), XIII, XIV, XXI, XXVI and XXVIII). 11

12 (Doc. No. 135 at 40-41.)

13 For the reasons previously stated, Petitioner allegations of insufficient evidence at the 14 guilt phase lack merit.

15 ii. Insufficient Evidence at the Penalty Phase 16 Petitioner argues insufficient evidence at the penalty phase. He argues mitigating value 17 of lingering doubt arising from insufficiently supported aggravating circumstances of the

18 crime, rendering his death sentence constitutionally unreliable. (See Doc. No. 142 at 257.)

19 However, the state supreme court reasonably could reject Petitioner’s claimed insufficiency of 20 the guilt phase evidence recast as a penalty phase claim, for the reasons stated.

21 Petitioner goes on to argue the balance of aggravating circumstances presented by the 22 prosecution, i.e. evidence of five autopsy photos and the stipulated 1983 burglary conviction,

23 was insufficiency supported in the trial record. (Doc. No. 51-1 ¶ 993). Petitioner supports the

24 argument by pointing to: (i) the mitigation proffer evidence that was not presented to the jury,

25 (ii) the jury’s alleged improper consideration of Lavelle Garratt’s outburst, (iii) the prejudicial

26 nature of the autopsy photographs, and (iv) the breakdown in communication between 27 Petitioner and Schultz allegedly resulting in a lack of representation at the penalty phase. (See

28 236 1 Doc. No. 142 at 257, citing Johnson v. Mississippi, 486 U.S. 578, 585-86 (1988) (vacated

2 conviction found insufficient as aggravating evidence).) Petitioner argues the jury’s failure to

3 reach immediate agreement on a sentence as suggesting prejudice. (CT 477-482.)

4 However, Petitioner does not point to clearly established federal law that the 5 prosecution bears a burden of proof at the sentencing phase subject to review for sufficiency of

6 evidence. For the reasons stated, the prosecution bears no burden of proof at the sentencing

7 phase. Williams, 52 F.3d, at 1485; Cudjo, 6 Cal. 4th at 634. The jury’s sentencing

8 determination was wholly moral and normative. See Prieto, 30 Cal. 4th at 275 (“[T]he penalty

9 phase determination in California is normative, not factual. It is therefore analogous to a

10 sentencing court's traditionally discretionary decision to impose one prison sentence rather than

11 another.”).

12 As discussed more fully in claim XXV(E, H, I) above, a capital murder defendant in 13 California does not have the right to proof beyond reasonable doubt of sufficient facts to

14 support the selected sentence. The facts supporting death eligibility were determined,

15 constitutionally, at the guilt phase. (See Doc. No. 135 denying guilt phase claims.)

16 Petitioner’s disagreement with the jury’s sentencing determination and the trial court’s denial

17 of his motion for new trial and modification of the verdict is not alone a basis for relief.

18 Furthermore, Petitioner has failed to demonstrate constitutional error in the state 19 supreme court’s rejection of his predicate penalty phase claims relating to Lavelle Garratt’s 20 outburst, the autopsy photographs, and the breakdown in communication with Schultz and

21 related Marsden allegations. (See discussion of claims II(I, U), IX, X, ante.) Reargument

22 alone is not persuasive.

23 Additionally, the claim fails as a cumulative error claim for the reasons stated in the 24 discussion of claims III(H) and XXIX , post.

25 c. Conclusions 26 A fair-minded jurist could find that Petitioner failed to establish his death sentence is 27 unconstitutional because it rests upon inaccurate, unreliable and insufficient evidence.

28 237 1 The state supreme court rejection of the claim was not contrary to, or an unreasonable 2 application of, clearly established federal law, as determined by the Supreme Court. 28 U.S.C.

3 § 2254(d). Nor was the state court’s ruling based on an unreasonable determination of the facts

4 in light of the evidence presented in the state court proceeding. Id.

5 Claim XXVII shall be denied. 6 F. Claims Relating to Cumulative Error 7 1. Legal Standards 8 The Ninth Circuit has stated “the Supreme Court has clearly established that the 9 combined effect of multiple trial errors may give rise to a due process violation if it renders a

10 trial fundamentally unfair, even where each error considered individually would not require

11 reversal.” Parle v. Runnels, 505 F.3d 922, 928 (9th Cir. 2007) (citing DeChristoforo, 416 U.S.

12 at 643). In the Ninth Circuit, the cumulative effect of trial errors can be a basis for habeas

13 relief in certain circumstances.

14 Although individual errors looked at separately may not rise to the level of reversible 15 error, their cumulative effect may nevertheless be so prejudicial as to require reversal. U.S. v.

16 Necoechea, 986 F.2d 1273, 1282 (1993); see also Alcala v. Woodford, 334 F.3d 862, 883 (9th

17 Cir. 2003) (“[E]rrors that might not be so prejudicial as to amount to a deprivation of due

18 process when considered alone, may cumulatively produce a trial setting that is fundamentally

19 unfair.”). 20 However, the fact that errors have been committed during a trial does not mean that 21 reversal is required. “While a defendant is entitled to a fair trial, [she] is not entitled to a

22 perfect trial, for there are no perfect trials.” United States v. Payne, 944 F.2d 1458, 1477 (9th

23 Cir. 1991).

24 Errors of state law, such as whether instructions were correct under state law, are not 25 cognizable in federal habeas, McGuire, 502 U.S. at 71-72, and therefore should play no part in

26 cumulative error analysis. See Parle, 387 F.3d, at 1045 (citing Jeffers, 497 U.S. at 780) (no 27 habeas relief for state law errors whose combined effect does not violate the federal

28 238 1 constitution).

2 2. Review of Claims III(H) and XXIX 3 Petitioner alleges the cumulative effect of errors by counsel at the penalty phase (i.e. 4 claim III(H)) and at the guilt and penalty phases together (i.e. claim XXIX), violated his rights

5 under the Fifth, Sixth, Eight and Fourteenth Amendments. (Doc. No. 51-1, ¶¶ 615-16, 1006-

6 1017; Doc. No. 142 at 258, citing Ceja v. Stewart, 97 F.3d 1246, 1254 (9th Cir. 1996; see also

7 Harris v. Wood, 64 F.3d 1432, 1438 (9th Cir. 1995) (finding cumulative prejudice under

8 Strickland); Mak v. Blodgett, 970 F.2d 614, 622 (9th Cir. 1992) (same).15

9 a. State Court Direct and Collateral Review 10 Claim III(H) was raised in the second state exhaustion petition alleging cumulative 11 penalty phase ineffective assistance (Lod. Doc. No. 30 at 302) and denied on the merits and on

12 procedural grounds (Lod. Doc. No. 31, Order Denying Cal. Pet., In re Colin Raker Dickey, No.

13 S165302 (May 29, 2012)).

14 Claim XXIX was raised in the second state exhaustion petition alleging cumulative 15 error in trial proceedings (Lod. Doc. No. 30 at 368-73) and denied on the merits and on

16 procedural grounds (Lod. Doc. No. 31, Order Denying Cal. Pet., In re Colin Raker Dickey, No.

17 S165302 (May 29, 2012)).

18 Petitioner also alleged in his direct appeal the cumulative impact of penalty phase errors 19 which the California Supreme Court denied on the merits. Dickey, 35 Cal. 4th at 933. 20 b. Analysis 21 Petitioner argues the cumulative effect of trial errors and prosecutorial misconduct 22 acknowledged by the California Supreme Court and found not to be prejudicial by that court;

23 and the cumulative effect of the balance of errors alleged in the federal petition.

24 As to the former, Petitioner points to the following errors acknowledged in the record: 25 (i) the trial court’s self-admitted failure to issue sua sponte an instruction that Petitioner’s

26 alleged oral confession should be viewed with caution, (ii) the trial court’s acceptance of 27

28 15 Petitioner argues in favor of claim III(H) only in his reply brief. (See Doc. No. 144 at 39.) 239 1 petitioner’s waiver of personal presence at the penalty phase in violation of state law, (iii) the

2 prosecutor’s failure to correct the false impression that the state had not done any favors for its

3 witness Gene Buchanan, and (iv) the prosecutor’s likely vouching for Gene Buchanan’s

4 credibility. (See Doc. No. 142 at 259.)

5 As to the balance of constitutional errors alleged in the federal petition, Petitioner 6 emphasizes the alleged weakness of the aggravating circumstances of the crime and that his

7 prior felony conviction for burglary was not a violent crime. (See e.g. Doc. No. 142 at 259-60,

8 citing United States v. Frederick, 78 F.3d 1370, 1381 (9th Cir. 1996) (“In those cases where

9 the government's case is weak, a defendant is more likely to be prejudiced by the effect of

10 cumulative errors.”); see also RT 5134-38.)

11 Petitioner also argues the cumulative impact of all these alleged errors is apparent in the 12 jury’s failure to reach an immediate penalty verdict. (CT 477-479); see also Frederick, 78

13 F.3d at 1381.

14 The California Supreme Court on direct appeal denied alleged cumulative guilt phase 15 error, stating simply:

16 Defendant contends “the cumulative effect of numerous errors occurring during 17 the guilt phase compels reversal.” The contention has no merit. 18 Dickey, 35 Cal. 4th at 915.

19 That court also denied on direct appeal the allegation of cumulative penalty phase error, 20 stating that:

21 Defendant contends the cumulative impact of errors in the penalty phase 22 compels reversal of the death penalty. We disagree. 23

24 Dickey, 35 Cal. 4th at 933.

25 The California Supreme Court reasonably denied these cumulative error claims. 26 Petitioner fails to show the cumulative effect of alleged errors at the guilt and penalty phases 27 deprived him of due process. Petitioner’s guilt phase claims fail for the reasons stated in the

28 240 1 Court’s prior order denying those claims. (Doc. No. 135.) Petitioner’s penalty phase claims

2 fail for the reasons stated, ante.

3 Particularly, the state supreme court reasonably could find errors allegedly 4 acknowledged by the state court to be harmless and otherwise unsupported in the record. (Doc.

5 No. 135 at 33-54, 57-61, 96-99, 98-101, 178-82; see the discussion of claims VI and VII

6 above); see also Dickey, 35 Cal. 4th at 905-11, 913-14, 922-24.

7 To the extent errors may be discerned, Petitioner has failed to demonstrate their 8 combined effect was prejudicial by rendering his defense “far less persuasive” so as to exert a

9 “substantial and injurious effect or influence” on the verdict. Parle, 505 F.3d, at 928 (citing

10 Chambers, 410 U.S. at 294, and Brecht, 507 U.S. at 637); see also Thompson v. Calderon, 86

11 F.3d 1509, 1521 (9th Cir. 1996) (reversed on other grounds by Calderon v. Thompson, 523

12 U.S. 538 (1998) (“finding no prejudice from the errors considered separately, we also find no

13 cumulative prejudice.”).

14 Cumulative error warrants habeas relief only where the errors have “so infected the trial 15 with unfairness as to make the resulting conviction a denial of due process.” Parle, 505 F.3d,

16 at 927-28; see also United States v. Karterman, 60 F.3d 576, 580 (9th Cir. 1995) (“Because

17 each error is, at best, marginal, we cannot conclude that their cumulative effect was ‘so

18 prejudicial’ to [defendant] that reversal is warranted.”).

19 Here, for the reasons stated, there is nothing to accumulate to a level of reversible error. 20 Petitioner was “entitled to a fair trial but not a perfect one, “for there are no perfect trials.”

21 McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 553 (1984) (quoting Brown

22 v. United States, 411 U.S. 223, 231-232 (1973)).

23 Moreover, apart from arguing Strickland error, Petitioner has not demonstrated and 24 does not appear to argue clearly established Supreme Court precedent that cumulative error is a

25 basis upon which habeas relief may be granted.

26 c. Conclusions 27 A fair-minded jurist could find that Petitioner failed to establish his death sentence is 28 241 1 unconstitutional due to the cumulative effect of errors by counsel at both phases of this trial.

2 The state supreme court rejection of these claims was not contrary to, or an 3 unreasonable application of, clearly established federal law, as determined by the Supreme

4 Court. 28 U.S.C. § 2254(d). Nor was the state court’s ruling based on an unreasonable

5 determination of the facts in light of the evidence presented in the state court proceeding. Id.

6 Claims III(H) and XXIX shall be denied. 7 VIII. CERTIFICATE OF APPEALABILITY 8 Because this is a final order adverse to the Petitioner, Rule 11 of the Rules Governing 9 Section 2254 Cases (“Rule 11”) requires this Court to issue or deny a Certificate of

10 Appealability (“COA”). Accordingly, the Court has sua sponte evaluated the claims within the

11 petition for suitability for the issuance of a COA. 28 U.S.C. § 2253(c); Turner, 281 F.3d at

12 864-65.

13 A state prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a 14 district court’s denial of his petition, and an appeal is only allowed in certain circumstances.

15 Miller-El, 537 U.S. at 335–36 (2003). The controlling statute in determining whether to issue a

16 COA is 28 U.S.C. § 2253, which provides that:

17 (a) In a habeas corpus proceeding or a proceeding under section 2255 before a district judge, the final order shall be subject to review, on appeal, by the court 18 of appeals for the circuit in which the proceeding is held. 19 (b) There shall be no right of appeal from a final order in a proceeding to test the validity of a warrant to remove to another district or place for commitment or 20 trial a person charged with a criminal offense against the United States, or to test the validity of such person’s detention pending removal proceedings. 21 (c) (1) Unless a circuit justice or judge issues a certificate of appealability, an 22 appeal may not be taken to the court of appeals from— 23 (A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court; or 24 (B) the final order in a proceeding under section 2255. 25 (2) A certificate of appealability may issue under paragraph (1) only if the 26 applicant has made a substantial showing of the denial of a constitutional right. 27 (3) The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2). 28 242 1 The Court may issue a COA only “if jurists of reason could disagree with the district 2 court’s resolution of his constitutional claims or that jurists could conclude the issues presented

3 are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327; Slack

4 v. McDaniel, 529 U.S. 473, 484 (2000). While the petitioner is not required to prove the merits

5 of his case, he must demonstrate “something more than the absence of frivolity or the existence

6 of mere good faith on his . . . part.” Miller-El, 537 U.S. at 338.

7 In the present case, the Court finds that, with respect to the following claims, 8 reasonable jurists could disagree with the Court’s resolution or conclude that the issues

9 presented are adequate to deserve encouragement to proceed further:

10 1) Claims I, II(E), II(I), V, and XIII. 11 Therefore, a COA is granted as to these five claims. 12 As to the remaining claims, the Court concludes that reasonable jurists would not find 13 the Court’s determination that Petitioner is not entitled to relief debatable, wrong, or deserving

14 of encouragement to proceed further. The Court hereby declines to issue a COA as to the

15 remaining claims.

16 IX. ORDER 17 Accordingly, for the reasons stated: 18 1. The petition for writ of habeas corpus (Doc. Nos. 51, 51-1) is DENIED, guilt 19 phase claims I, II (portions), IV, VIII, XII (portions), XIII, XIV, XV, XVI, 20 XVII, XVIII, XIX, XXI, XXII, XXIII, XXIV, XXVI, and XXVIII were denied 21 on the merits by order issued January 13, 2017 (Doc. No. 135), penalty phase 22 claims herein II(I), II(U), III(A), III(B), III(C), III(D), III(E), III(F), III(G), 23 III(H), V, VI, VII, IX, X, XI, XII(D), XII(E), XII(F), XII(G), XII(H), XX, 24 XXV(A), XXV(B), XXV(C), XXV(D), XXV(E), XXV(F), XXV(G), XXV(H), 25 XXV(I), XXV(J), XXV(K), XXV(L), XXVII, XXIX are denied on the merits, 26 2. A Certificate of Appealability is ISSUED as to the Court’s resolution of claims 27 I, II(E), II(I), V, and XIII, and DECLINED as to the remaining claims, 28 243 1 3. Petitioner’s motion for stay, partial judgment and certificates of appealability 2 (Doc. No. 145) is DENIED as moot, 3 4. Any and all scheduled dates are VACATED, and 4 5. The Clerk of the Court is directed to substitute RON DAVIS, Warden of San 5 Quentin State Prison, as the Respondent warden in this action, and to enter 6 judgment accordingly. 7 IT IS SO ORDERED. 8

9 Dated: September 12, 2019 SENIOR DISTRICT JUDGE 10

19 20

26 27

28 244