(HC) Singh v. Rackley

• Court: District Court, E.D. California
• Decided: August 6, 2020
• Docket: 2:16-cv-02517
• Status: Unknown

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 BALJIT SINGH, No. 2:16-cv-2517 KJM AC 11 Petitioner, 12 v. FINDINGS AND RECOMMENDATIONS 13 RON RACKLEY, Warden, 14 Respondent. 15 16 Petitioner is a California state prisoner proceeding with counsel on an application for a 17 writ of habeas corpus pursuant to 28 U.S.C. § 2254. The action proceeds on a petition 18 challenging petitioner’s 2011 conviction for second degree murder. ECF No. 1. Respondent has 19 answered, ECF No. 11, and petitioner has filed a traverse, ECF No. 13. 20 BACKGROUND 21 I. Proceedings In the Trial Court 22 A. Preliminary Proceedings 23 Petitioner was charged in San Joaquin County with killing his wife, who had been stabbed 24 to death on December 23, 2009. The information charged petitioner with murder (Cal. Penal 25 Code § 187(a)) and alleged that he used a knife to commit the murder (former Cal. Penal Code § 26 12022(b)(1)). 1 CT 1-2.1 27 1 “CT” refers to the Clerk’s Transcript on Appeal, which is in three volumes (Lodged Docs. 1 28 through 3). “RT” refers to the Reporter’s Transcript on Appeal, which is in five volumes 1 On December 30, 2009, criminal proceedings were suspended pursuant to Cal. Penal Code 2 § 1368, for evaluation of petitioner’s competency. 1 CT 4-5. A jury trial was held on the 3 question of competency commencing on March 11, 2010. 1 CT 37-48. On March 22, 2010, the 4 jury found petitioner competent to stand trial. 1 CT 49. 5 A preliminary hearing was held on April 1 and 2, 2010. 1 CT 109 – 2 CT 285. Petitioner 6 was represented at the hearing by Joel Deckler. 1 CT 109. Although counsel strongly advised 7 against it, 1 CT 205-206, 254, petitioner testified at the preliminary hearing. 1 CT 258 – 2 CT 8 281. Petitioner was held to answer on the charges. 2 CT 281-282. 9 Following the preliminary hearing, Mr. Decker (who had been retained through the 10 preliminary hearing only) was relieved and Deputy San Joaquin County Public Defender Rose 11 Cardoso was appointed to represent petitioner. 12 On June 7, 2010, petitioner entered pleas of not guilty and not guilty by reason of insanity. 13 2 CT 290. 14 Prior to trial, petitioner rejected an offer to plead guilty to voluntary manslaughter in 15 exchange for a twelve-year sentence. Petitioner’s lawyer had strongly advised him to take the 16 deal, in light of the evidence against him and the likelihood of a murder conviction. Lodged Doc. 17 10 (Reporter’s Transcript of Sealed Proceedings) at 11-13. 18 Petitioner brought a total of five Marsden motions2 prior to and during the course of the 19 trial. Lodged Doc. 10 (Reporter’s Transcript of Sealed Proceedings). All were denied. Id.3 20 B. The Evidence Presented at Trial 21 1. Guilt Phase 22 The evidence at trial established the following facts.4 23 Petitioner started working at the San Jose airport’s weather station in 2004. Initially, he 24 (Lodged Docs. 5 through 9). 25 2 People v. Marsden, 2 Cal.3d 118 (1970). 26 3 The denials of petitioner’s Marsden motions were challenged on appeal. The Court of Appeal affirmed the rulings. Lodged Doc. 14 at 10-15. 27 4 This statement of facts is largely adapted from the opinion of the California Court of Appeal, Lodged Doc. 14. Both parties have adopted that statement, and the court’s review of the trial 28 transcript confirms its accuracy. Some details have been added. 1 worked five days a week, eight hours a day. In 2008, he began working four days a week, 10 2 hours a day. In October 2009, he reduced his weekly hours to 37. In November 2009, he reduced 3 his hours to 30 hours, spread over three 10-hour shifts. Petitioner’s supervisor, Thomas Chance, 4 said petitioner was “the picture of stability” and “an ideal employee.” 5 On December 11, 2009, petitioner asked Chance for the company doctor because his back 6 was hurting him. His back would stiffen on the long drive from his home in Lathrop to work. 7 Chance told petitioner there was no company doctor, but the company’s insurance would cover 8 him. Chance also told him if his back was bad, he should see a doctor. 9 On December 14, 2009, petitioner called in sick for work. Later that day, Chance called 10 petitioner and gave him the company’s insurance policy number. Petitioner, however, did not 11 want the insurance information; he wanted the company doctor. Petitioner insisted on the 12 company doctor, even though Chance told him there was not one. 13 On his next shift, December 16, petitioner asked Chance if he got the company doctor for 14 him. Chance again told him to use the company insurance and go see a doctor. Petitioner took 15 the insurance information. But on his next shift, December 18, he asked the same question, and 16 Chance repeated his answer. 17 On the day of his next shift, December 21, petitioner called Chance and said he quit. 18 When asked why, petitioner said he was not feeling well. He returned his security badge the 19 following day, December 22. Petitioner was reluctant to use his badge or key to access the 20 facility because he was no longer an employee, so Chance let him in to the premises. Chance 21 believed petitioner wanted “to be precise,” as in everything he did. Petitioner looked clean and 22 well maintained at that time. 23 That same month, petitioner and his wife, Sherene, had dinner with his uncle, Niranjan 24 Uppal, and Uppal’s fiancée, Marie Saenz. Petitioner’s and Sherene’s behavior seemed different. 25 Petitioner mumbled to himself and fidgeted with his fingers. Sherene seemed sad and acted 26 afraid. Petitioner spoke with Uppal in the garage and asked him how to apply for unemployment 27 and, if he got injured on his property, whether his homeowner’s insurance would cover it. During 28 that time, Sherene and Saenz had been talking at the table. When the men came in from the 1 garage, Sherene turned away from Saenz as if she had not been talking with her. She went to the 2 kitchen sink and acted like she was doing something there. 3 On December 23, 2009, at around 12:49 a.m., San Joaquin County Sheriff’s deputies were 4 dispatched to petitioner’s home. Petitioner’s eight-year-old son opened the door to them. He had 5 a blank stare and was covered in blood. He let the deputies in, and petitioner’s 10-year-old 6 daughter, who was still on the phone with the 911 dispatcher, told them her parents were upstairs. 7 The deputies noticed blood stains on the stairs. 8 When a deputy announced themselves, petitioner jumped out of a bedroom, holding a 9 knife in his right hand. He was completely drenched in blood. With their weapons drawn, the 10 deputies ordered petitioner a number of times to drop the knife. Petitioner did not. Several times, 11 he said, “Just shoot me.” He took a step towards one of the deputies, who fired his Taser and 12 subdued petitioner. Petitioner had a laceration on his neck. In a bedroom, deputies found the 13 body of petitioner’s wife, Sherene. She was fully clothed, and her clothes were extensively 14 soaked with blood. 15 The pathologist determined Sherene suffered three deep stab wounds in the front of her 16 neck that extended from the neck’s junction with the submental triangle down to its junction with 17 the trunk. The stab wounds indicated the stabbings had not been simple stabs in and out, but were 18 in and out with motion of the knife inside the body. Sherene also had nine incised wounds in and 19 around her face, neck, and head. In addition, she had numerous abrasions and contusions on her 20 lips and other body areas, as well as some defensive wounds. Because the stabbings cut her 21 trachea and completely transected the jugular vein, she bled to death as well as drowned in her 22 own blood. She was not dressed like someone who was going to bed. Her wounds were not 23 consistent with having committed suicide, and she was not under the influence of any substance. 24 The presence of blood stains on many different surfaces indicated there had been some type of 25 struggle. 26 The defense presented no evidence in the guilt phase. Instead, counsel cross-examined 27 law enforcement witnesses to highlight gaps in the investigation and in the forensic evidence, and 28 attempted to undermine the credibility of the pathologist (whose conclusions about Sherene’s 1 wounds formed the primary basis of the prosecution’s case for malice and intent to kill). In 2 closing, counsel argued that the investigation had been biased toward confirming petitioner’s guilt 3 rather than determining whether someone else, such as an intruder, might have been responsible 4 for the stabbing. She urged the jury to find that the charges had not been proved beyond a 5 reasonable doubt. 6 2. Sanity Phase 7 At the sanity phase, the defense presented the testimony of two court-appointed mental 8 health experts who had been asked to opine on petitioner’s sanity at the time he murdered his 9 wife. John Chellsen, Ph.D., a clinical psychologist, and Dr. Kent Rogerson, a psychiatrist, both 10 believed petitioner was insane when he killed his wife. Both testified that petitioner was 11 incapable of knowing and understanding the nature and quality of his actions and their 12 wrongfulness when he committed the crime. 13 Dr. Chellsen opined petitioner suffered from depression, and at the time of the murder, his 14 depression had worsened to include psychotic symptoms such as hallucinations, disordered and 15 delusional thinking, and a loss of contact with reality. Dr. Chellsen believed petitioner’s 16 condition might more accurately be categorized as schizoaffective disorder, which includes major 17 depression along with symptoms of schizophrenia. He testified petitioner’s disorder had 18 improved since the murder to the moderate range of severity. 19 Dr. Rogerson believed petitioner had major depression with delusional and confused 20 thinking. He testified petitioner began suffering from a sinus infection, headaches, and back pain 21 in October 2009. These aliments affected his ability to sleep, and he became progressively more 22 depressed. Petitioner began having suicidal thoughts, and he pulled away from doing things he 23 normally did. Dr. Rogerson believed petitioner was depressed, delusional, and had no 24 understanding of what was going on at the time of the crime. 25 Both expert witnesses believed petitioner was not malingering or faking his symptoms. 26 Detective Lawrence Gardiman testified for the prosecution. He had visited petitioner in 27 the hospital later on the morning of the killing. He was told petitioner was not taking any 28 medication at that time. He read petitioner his Miranda rights and asked him if he understood his 1 rights. Petitioner said “Yes” as to each right individually and as to his rights collectively. 2 Detective Gardiman next asked petitioner if he wanted to talk about what happened. Petitioner 3 said he would talk to Detective Gardiman the next day. The following day, Detective Gardiman 4 again met with petitioner at the hospital. He again advised petitioner of his rights and asked if he 5 understood them. Petitioner said he did, and that he wanted an attorney. The detective then left. 6 The prosecution presented no expert testimony in the sanity issue. 7 C. Outcome 8 At the conclusion of the guilt phase, the jury returned a verdict of not guilty of first degree 9 murder and guilty of second degree murder. The weapon enhancement was found to be true. 2 10 CT 372, 382-384. Following the sanity phase, the jury found that petitioner was sane at the time 11 of the murder. 2 CT 531, 536. 12 The trial court sentenced defendant to a prison term of 15 years to life, plus one year, 13 consecutive, for the weapon enhancement. 3 CT 670-674, 678-679. 14 II. Post-Conviction Proceedings 15 Petitioner timely appealed, and the California Court of Appeal affirmed the judgment of 16 conviction on December 10, 2014. Lodged Doc. 14. The California Supreme Court denied 17 review on March 11, 2015. Lodged Doc. 16. 18 Petitioner filed a petition for writ of habeas corpus in the California Supreme Court on 19 April 27, 2016, presenting the single claim that is now before this court: ineffective assistance of 20 trial counsel in failing to present mental state evidence at the guilt phase. Lodged Doc. 17. The 21 California Supreme Court ordered an informal reply, which was filed on July 16, 2016. Lodged 22 Doc. 18. Petitioner file a response to the informal reply. Lodged Doc. 19. The petition was 23 denied by summary order, without comment or citation, on October 12, 2016. Lodged Doc. 20. 24 The instant federal petition was thereafter timely filed. 25 STANDARDS GOVERNING HABEAS RELIEF UNDER THE AEDPA 26 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 27 1996 (“AEDPA”), provides in relevant part as follows: 28 1 (d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a state court shall not be 2 granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim – 3 (1) resulted in a decision that was contrary to, or involved an 4 unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or 5 (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the 6 State court proceeding. 7 The statute applies whenever the state court has denied a federal claim on its merits, 8 whether or not the state court explained its reasons. Harrington v. Richter, 582 U.S. 86, 99 9 (2011). State court rejection of a federal claim will be presumed to have been on the merits 10 absent any indication or state-law procedural principles to the contrary. Id. (citing Harris v. Reed, 11 489 U.S. 255, 265 (1989) (presumption of a merits determination when it is unclear whether a 12 decision appearing to rest on federal grounds was decided on another basis)). “The presumption 13 may be overcome when there is reason to think some other explanation for the state court's 14 decision is more likely.” Id. at 99-100. 15 The phrase “clearly established Federal law” in § 2254(d)(1) refers to the “governing legal 16 principle or principles” previously articulated by the Supreme Court. Lockyer v. Andrade, 538 17 U.S. 63, 71-72 (2003). Only Supreme Court precedent may constitute “clearly established 18 Federal law,” but courts may look to circuit law “to ascertain whether…the particular point in 19 issue is clearly established by Supreme Court precedent.” Marshall v. Rodgers, 569 U.S. 58, 64 20 (2013). 21 A state court decision is “contrary to” clearly established federal law if the decision 22 “contradicts the governing law set forth in [the Supreme Court’s] cases.” Williams v. Taylor, 529 23 U.S. 362, 405 (2000). A state court decision “unreasonably applies” federal law “if the state 24 court identifies the correct rule from [the Supreme Court’s] cases but unreasonably applies it to 25 the facts of the particular state prisoner’s case.” Id. at 407-08. It is not enough that the state court 26 was incorrect in the view of the federal habeas court; the state court decision must be objectively 27 unreasonable. Wiggins v. Smith, 539 U.S. 510, 520-21 (2003). 28 1 Review under § 2254(d) is limited to the record that was before the state court. Cullen v. 2 Pinholster, 563 U.S. 170, 180-181 (2011). The question at this stage is whether the state court 3 reasonably applied clearly established federal law to the facts before it. Id. at 181-182. In other 4 words, the focus of the § 2254(d) inquiry is “on what a state court knew and did.” Id. at 182. 5 Where the state court’s adjudication is set forth in a reasoned opinion, §2254(d)(1) review is 6 confined to “the state court’s actual reasoning” and “actual analysis.” Frantz v. Hazey, 533 F.3d 7 724, 738 (9th Cir. 2008) (en banc). A different rule applies where the state court rejects claims 8 summarily, without a reasoned opinion. In Richter, supra, the Supreme Court held that when a 9 state court denies a claim on the merits but without a reasoned opinion, the federal habeas court 10 must determine what arguments or theories may have supported the state court’s decision, and 11 subject those arguments or theories to § 2254(d) scrutiny. Richter, 582 U.S. at 102. 12 DISCUSSION 13 I. Petitioner’s Ineffective Assistance of Counsel Claim and Pertinent State Court Record 14 Petitioner seeks federal habeas relief on the sole ground that he received ineffective 15 assistance of trial counsel. Petitioner alleges that Deputy Public Defender Rose Cardoso 16 performed deficiently and prejudicially by failing to present available mental state evidence at the 17 guilt phase to negate malice and intent to kill, and to support jury instructions on lesser included 18 manslaughter offenses. He contends that the evidence of mental impairment that was developed 19 for purposes of competency and the sanity phase should have been presented at the guilt phase. 20 The petition is supported, as it was supported in the California Supreme Court, by the 21 following exhibits: 22  The January 2010 competency report of Gary L. Cavanaugh, M.D., finding 23 petitioner not competent to stand trial; 24  The September 2010 “Criminal Responsibility Evaluation” of clinical psychologist 25 John A. Chellsen, Ph.D., opining that petitioner was insane at the time of the 26 homicide; 27  The August 2010 report of psychiatrist Kent E. Rogerson, M.D., opining that 28 petitioner was insane at the time of the homicide. 1 ECF No. 1-1 (Attachments A-C). 2 Petitioner’s fourth exhibit, ECF No. 1-1 (Attachment D), was presented to the California 3 Supreme Court by respondent in support of the informal reply. This is the declaration of defense 4 counsel Rose Cardoso, who avers in pertinent part as follows: 5 I recall discussing trial strategy in this case with my supervisor, Peter Fox, an experienced capital defense counsel. I decided not to present 6 a defense of diminished actuality, lack of malice, or of intent to kill in the guilt phase of Mr. Singh’s trial for two primary reasons. First, 7 presenting all the mental defense evidence one time in the sanity phase would be a more persuasive use of this evidence, since the jury 8 would not have already rejected it in the guilty phase. Second, a mental defense would be inconsistent with Mr. Singh’s statements to 9 me that a burglar was responsible for his wife’s murder. My strategy in the guilt phase focused on the prosecution not meeting its burden 10 because the police work regarding Mr. Singh’s statements regarding a burglar was insufficient. 11 12 Lodged Doc. 18, Exhibit B; ECF No. 1-1 (Attachment D). 13 II. The Clearly Established Federal Law 14 To establish a constitutional violation based on ineffective assistance of counsel, a 15 petitioner must show (1) that counsel’s representation fell below an objective standard of 16 reasonableness, and (2) that counsel’s deficient performance prejudiced the defense. Strickland v. 17 Washington, 466 U.S. 668, 692, 694 (1984). 18 The proper measure of attorney performance is objective reasonableness under prevailing 19 professional norms. Id. at 688. Counsel’s strategic choices are generally accorded deference, but 20 only if those decisions are themselves reasonable and are based on reasonable investigations, 21 research, and judgments. Id. at 690-691. “[C]ourts may not indulge ‘post hoc rationalization’ for 22 counsel’s decisionmaking that contradicts the available evidence of counsel’s actions.” Richter, 23 582 U.S. at 109 (quoting Wiggins v. Smith, 539 U.S. 510, 526-27 (2003)). 24 Prejudice means that the error actually had an adverse effect on the defense and that there 25 is a reasonable probability that, but for counsel’s errors, the result of the proceeding would have 26 been different. Strickland, 466 U.S. at 693-94. A “reasonable probability” is less than a 27 preponderance. Kyles v. Whitley, 514 U.S. 419, 434 (1995); Strickland, 466 U.S. at 693 28 (petitioner need not “show that counsel’s deficient conduct more likely than not altered the 1 outcome in the case”). A reasonable probability is a probability sufficient to undermine 2 confidence in the outcome. Id. In assessing prejudice from deficient performance, the court must 3 consider all of trial counsel’s unprofessional errors against “the totality of the evidence” adduced 4 at trial and in post-conviction proceedings. Id. at 695; Wiggins, 539 U.S. at 536; Williams v. 5 Taylor, 529 U.S. 362, 397 (2000). 6 III. The State Court’s Ruling 7 As noted above, the California Supreme Court denied the claim without comment or 8 citation. There are no reasoned lower court decisions denying the claim. 9 IV. Objective Reasonableness Under § 2254(d) 10 The question before this court is whether the California Supreme Court unreasonably 11 denied petitioner’s ineffective assistance of counsel claim in light of the record before it. 28 12 U.S.C. § 2254(d); Pinholster, 563 U.S. at 181-182. Unless the state court’s disposition of the 13 claim was not merely incorrect but objectively unreasonable under Strickland, this court may not 14 independently evaluate whether counsel’s decision not to present evidence at the guilt phase was 15 sufficiently below professional norms to violate Sixth Amendment standards, or whether 16 petitioner might have achieved a more favorable result had she done as petitioner now urges. 17 Because the state court denied the claim on the merits but without explanation, this court 18 must determine whether there is any objectively reasonable basis for a denial under clearly 19 established federal law. Richter, 582 U.S. at 102. A Strickland claim may be denied on either 20 performance or prejudice grounds; a reviewing court need not address both prongs of the analysis 21 if it finds petitioner’s showing insufficient as to one of them. Strickland, 466 U.S. at 697. For the 22 reasons that follow, the undersigned concludes that the California Supreme Court could have 23 reasonably denied the petition before it on either prong of the Strickland standard. 24 A. The State Court Could Reasonably Have Found That Counsel’s Performance Did Not 25 Violate the Sixth Amendment 26 The California Supreme Court was required to apply a “strong presumption” that 27 counsel’s representation fell within the “wide range” of reasonable professional assistance. 28 Strickland, 466 U.S. at 689. It was petitioner’s burden to overcome this presumption. Richter, 1 562 U.S. at 105; Strickland, 466 U.S. at 690. It cannot have been unreasonable for the California 2 Supreme Court to conclude that petitioner failed to meet this burden, because the record 3 establishes that trial counsel made a deliberate decision about defense strategy after investigating 4 mental state issues and considering alternative theories of defense. 5 Petitioner cannot establish constitutionally inadequate performance merely by identifying 6 an alternative defense strategy and arguing its superiority; he must show that the choice made “so 7 undermined the proper functioning of the adversarial process” that petitioner was denied a fair 8 trial. Strickland, 466 U.S. at 686. It is of course true that strategic choices are not immune from 9 challenge under Strickland; they must be reasonable. Jones v. Wood, 114 F.3d 1002, 1010 (9th 10 Cir. 1997). But as the Supreme Court has explained, 11 Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and 12 strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional 13 judgments support the limitations on investigation. 14 Strickland, 466 U.S. at 690. 15 This is not a case in which counsel failed to investigate or to present an available mental 16 state defense. Cf. Jennings v. Woodford, 290 F.3d 1006 (9th Cir. 2002), cert. denied, 539 U.S. 17 958 (2003). The petition makes no allegation that counsel’s mental state investigation was 18 inadequate in scope or that additional evidence existed. The petition challenges only counsel’s 19 strategic decision about how to use the evidence of petitioner’s psychiatric impairment that was 20 available through Drs. Chellsen and Rogerson.5 Petitioner presents no additional expert opinion 21 specific to guilt phase issues (diminished actuality, lack of malice, etc.) but relies exclusively on 22 the evidence that was developed in the sanity context to demonstrate the general availability of 23 mental state defenses that could have been presented at the substantive offense phase. 24 5 Petitioner also relies on the competency report provided by Dr. Cavanaugh. Because Dr. 25 Cavanaugh’s evaluation was limited to petitioner’s competence to stand trial, and did not address 26 petitioner’s mental state at the time of the crime, it has little probative value as to criminal liability and possible defenses. Dr. Cavanaugh’s diagnostic opinion that petitioner suffered from 27 major mental illness was generally consistent with that of Drs. Chellsen and Rogerson. Because his opinion adds nothing to the Strickland claim, however, it need not be separately discussed in 28 the court’s analysis. 1 There is nothing facially unreasonable about an attorney’s decision to pursue a verdict of 2 not guilty by reason of insanity when two court-appointed experts have found the defendant was 3 insane at the time of the homicide and there are no contrary opinions in the record. Indeed, the 4 insanity case available here was quite strong. The fact that it was not successful does not mean 5 that counsel was unreasonable for pursuing it to the exclusion of a mental state defense at the 6 guilt phase. See Bell v. Cone, 535 U.S. 685, 702 (2002) (warning against judging counsel’s 7 performance in “the harsh light of hindsight” following jury’s rejection of defense position (citing 8 Strickland, 466 U.S. at 689)). 9 It is undisputed that Ms. Cardoso made a deliberate, strategic decision to present mental 10 state evidence at the sanity phase only. She did so after discussion with her supervisor, who had 11 capital case experience and thus was presumably knowledgeable about mental state defenses. See 12 ECF No. 1-1, Attachment D, (Declaration of Rose Cardoso). It is clear from her declaration that 13 counsel considered the available alternatives. Id. Petitioner has identified no evidence to the 14 contrary. Under Strickland, this makes her decision “virtually unchallengeable.” 466 U.S. at 15 690. The undersigned will nonetheless briefly address each of counsel’s stated reasons for her 16 strategic choice, because the California Supreme Court’s reliance on a patently unreasonable 17 justification could nonetheless amount to an unreasonable application of Strickland. 18 First, Ms. Cardoso explained that “presenting all the mental defense evidence one time in 19 the sanity phase would be a more persuasive use of this evidence, since the jury would not have 20 already rejected it in the guilty phase.” ECF No. 1-1 (Attachment D). Accepting this justification 21 as within the wide range of adequate performance was not objectively unreasonable. An insanity 22 defense is a complete defense to criminal liability rather than grounds for conviction on a lesser 23 degree of murder or lesser included homicide offense, and both court appointed experts had 24 concluded that petitioner was insane. Accordingly, insanity constituted a strong affirmative 25 defense. Presenting the same testimony at the guilt phase would have meant that if the jury 26 rejected it as to the mens rea element(s) of murder, repeating it as to sanity would almost certainly 27 have been futile. Such an approach would have risked undermining what may have appeared at 28 the time to be the best chance of a result other than a life imprisonment for murder. See 1 Strickland, 466 U.S. at 689 (counsel’s choice must be evaluated from counsel’s perspective at the 2 time). 3 Ms. Cardoso had a second stated reason for not pursuing a guilt phase mental state 4 defense: it would have been inconsistent with her strategy to raise a reasonable doubt by focusing 5 on police bias and a slipshod investigation that assumed petitioner’s guilt. As already noted, 6 counsel decided on a defense theory after investigating the mental state evidence and weighing 7 the options. A reasonable doubt strategy—especially one floating the theoretical possibility of an 8 undiscovered intruder—may have been a weak defense, but that does not mean an alternative 9 strategy would have been superior. The chosen approach gave the defense two shots at a not 10 guilty verdict: (1) acquittal based on reasonable doubt at the guilt phase and, (2) if the jury 11 convicted, an alternative defense that could nonetheless result in a judgment of not guilty by 12 reason of insanity. A state court reasonably rejects a Strickland claim that is based on the 13 decision to pursue a reasonable doubt defense, rather than rely on expert testimony, absent a 14 complete failure to investigate or to make a reasonable decision that specific avenues of 15 investigation are not necessary. Richter, 562 U.S. at 109. That is simply not the case here.6 16 Moreover, presenting the mental health experts at the substantive offense phase would 17 have been risky in ways obvious to any reasonably competent criminal defense lawyer. Putting 18 the doctors on the witness stand would have opened the door to potentially damaging information 19 that otherwise could be kept from the jury at the guilt phase: evidence regarding petitioner’s 20 comprehension and invocation of his Miranda rights in the hospital, which the prosecutor could 21 be expected to argue demonstrated an intact cognitive state; statements petitioner had made to the 22 doctors about the possible presence of an intruder in the house and the possibility that his wife 23 attempted suicide7; and petitioner’s own preliminary hearing testimony in which (a) his recall of 24 6 In Richter, supra, the U.S. Supreme Court reversed the Ninth Circuit’s findings of unreasonable 25 state court adjudication and unreasonable attorney performance on facts much more favorable to 26 the petitioner than are presented here. In Richter, counsel did not even consult with any experts before deciding to pursue a reasonable doubt theory rather than present expert testimony on an 27 exoneration theory. Here counsel not only had expert opinion evidence, she used it. 7 See ECF No. 1-1, Attachment B (Declaration of Dr. Chellsen); RT 1022 (testimony of Dr. 28 Chellsen); ECF No. 1-1, Attachment C (Declaration of Dr. Rogerson); RT 1132 (testimony of Dr. 1 events was inconsistent with later representations of complete amnesia as to the stabbing, and (b) 2 he testified that his wife had attacked him with the knife, he tried to take the knife away from her, 3 and both of them were injured in the course of the ensuing struggle.8 4 All of this problematic evidence would have been admissible to impeach the experts 5 and/or admissible in rebuttal.9 The preliminary hearing testimony would have been particularly 6 damaging. Given the autopsy conclusions regarding the nature of Sherene’s wounds, counsel 7 may reasonably have worried that a jury would interpret the petitioner’s story about a struggle 8 over the knife as a fabrication reflecting consciousness of guilt. When expert testimony might 9 open the door to damaging information, it is not unreasonable for a state court to deny a 10 Strickland claim predicated on the failure to present it. See Richter, 562 U.S. at 108. 11 For all of these reasons, it would not have been objectively unreasonable for the California 12 Supreme Court to conclude that petitioner had failed to overcome the presumption that counsel’s 13 strategic choice fell within the wide range of professional competence. 14 B. The State Court Could Reasonably Have Found That Petitioner Failed to Establish 15 Prejudice 16 To demonstrate prejudice, petitioner must establish a reasonable likelihood of a more 17 favorable result had counsel done as he now urges. Strickland, 466 U.S. at 696. Petitioner was 18 charged with an open count of murder, and he was convicted of murder in the second degree. 19 Accordingly, he can show prejudice only if presentation of the mental state evidence at the guilt 20 phase would, with reasonable likelihood, have led to either outright acquittal or a manslaughter 21 verdict. Those are the only possible outcomes in a murder case that are more favorable than 22 second degree murder. 23 The bottom line here is that the jury rejected the testimony of Drs. Chellsen and Rogerson 24 at the sanity phase, and there is no reason to think they would have credited it at the guilt phase. 25 At the sanity phase, both doctors provided detailed, expertly elicited testimony about their 26 Rogerson). 27 8 See 1 CT 264 – 2 CT 281 (preliminary hearing testimony of Baljit Singh). 9 Indeed, as discussed below regarding prejudice, this evidence did come in via impeachment 28 and/or as rebuttal during the sanity phase. 1 diagnoses of petitioner and their reasons for concluding that he was so out of touch with reality at 2 the time of the homicide that he had not known what he was doing.10 Both doctors were 3 vigorously and effectively cross-examined. They were impeached with inconsistencies between 4 what petitioner had told them and what he said at the preliminary hearing, and with 5 inconsistencies between how he presented himself to them and how he presented himself to 6 others during the relevant time frame.11 Moreover, through cross-examination of the experts the 7 jury learned the substance of petitioner’s preliminary hearing testimony: that his wife had come at 8 him with the knife, and that they were both injured when they fell during their ensuing struggle. 9 This information was not consistent with the pathologist’s testimony regarding the victim’s 10 wounds. Accordingly, it both undermined the doctors’ conclusions regarding petitioner’s 11 amnesia and also suggested that petitioner had made up a story about how his wife died. The 12 undersigned does not mean to say this was actually the case, only that the impeachment of the 13 experts introduced information that hurt the defense in multiple ways. 14 In this case we need not speculate about how a theoretical jury would evaluate a mental 15 state defense. The fact that the actual jury rejected the conclusions of the only two testifying 16 experts at the sanity phase means that, in light of the evidence as a whole, they did not find those 17 experts or their opinions to be credible. There is no other explanation for the sanity verdict, and 18 no grounds for a conclusion that the jury would have made a different credibility determination at 19 the guilt phase. In affirming the sufficiency of the evidence on sanity as a matter of California 20 law, the Court of Appeal highlighted the impeachment of the experts, the evidence of petitioner’s 21 rational behavior shortly before and after the homicide, and petitioner’s actions reflecting 22

23 10 The testimony of Dr. Chellsen is found at 4 RT 975-1076. The testimony of Dr. Rogerson is at 4 RT 1085 – 5 RT 1230. 24 11 Impeachment focused on matters such as the inconsistencies between petitioner’s statements to the doctors that he did not remember the stabbing and his testimony about the stabbing at the 25 preliminary hearing; inconsistency between petitioner’s report to Dr. Chellson of auditory 26 hallucinations and his denial of hallucinations at the hospital; and inconsistency between the doctors’ conclusions about petitioner’s mental state on the night of the murder and the cogent 27 directions petitioner gave his 8-year old son that night to call 911 and then call the children’s grandparents. Rebuttal was presented in the form of Detective Gardiman’s testimony regarding 28 petitioner’s responses to Miranda advisements and invocation of the right to counsel. 1 consciousness of guilt. Lodged Doc. 14 at 6-10. The same total evidentiary picture makes it less 2 than reasonably likely that a guilt-phase mental state defense would have succeeded. 3 Even assuming that both doctors would have provided guilt phase testimony from which 4 the jury could conclude that, due to mental illness, petitioner did not act with premeditation or 5 deliberation,12 that conclusion would negate only first degree murder liability. See Cal. Penal 6 Code § 189(a). The jury rejected first degree murder even without the mental state evidence, so 7 this obviously does not demonstrate prejudice. Acquittal of second degree murder would have 8 required the jury to find insufficient evidence of malice, either express (intent to kill) or implied 9 (subjective awareness of engaging in conduct that endangers the life of another).13 The 10 undersigned will accept for purposes of discussion the legal correctness and strategic viability of 11 petitioner’s theories about the use of mental state evidence to raise a reasonable doubt about 12 malice. However, the fact remains that this outcome is reasonably likely only to the extent it is 13 reasonably likely that the jury would have accepted the doctors’ conclusions about the severity of 14 petitioner’s illness and the degree to which it affected his functioning and his subjective 15 understanding at the time of the homicide. In light of the impeachment evidence already 16 described, it would not have been unreasonable of the California Supreme Court to conclude that 17 the likelihood of such an outcome was less than substantial. See Strickland, 466 U.S. at 693 (the 18 likelihood of a different result must be substantial, not just conceivable). 19 As for the likelihood of a manslaughter verdict based on mental health evidence, this court 20 is bound by the conclusion of the California Court of Appeal that there was no evidence at 21 petitioner’s trial which supported the giving of manslaughter instructions. See Lodged Doc. 14 22 (Opinion on direct appeal) at 21-22 (holding that the evidence did not justify giving instructions 23 on voluntary or involuntary manslaughter); see also Bradshaw v. Richey, 546 U.S. 74, 76 (2005) 24 (federal court must accept correctness of state court’s ruling on matters of state law). Nothing in 25

26 12 As petitioner points out, the jury was concerned with the meaning of “deliberately,” as reflected in a note seeking clarification of the definition provided in the instructions. See 2 CT 27 391. 13 See Cal. Penal Code § 188; see also People v. Watson, 30 Cal. 3d 290, 296-97 (1981); People 28 v. Knoller, 41 Cal. 4th 139, 143 (2007). □□□ 2 EUINGIVIT EY IR AY ot OV

1 || the expert reports or the sanity phase testimony suggests the existence of facts not introduced at 2 | the guilt phase which would have supported sudden quarrel or heat of passion, unreasonable self- 3 || defense, commission of a life-threatening misdemeanor, or criminal negligence. See Lodged 4 | Doc. 14 at 21-22 (enumerating bases for manslaughter liability). On the facts of this case, 5 || petitioner’s mental state evidence does not support the likelihood of a manslaughter verdict. 6 For all these reasons, it would not have been unreasonable for the California Supreme 7 || Court to conclude that petitioner had failed to establish the reasonable likelihood of a more 8 || favorable result had counsel presented Drs. Chellsen and Rogerson at the guilt phase. 9 CONCLUSION 10 The California Supreme Court’s denial of relief was not objectively unreasonable under 11 | Strickland, whether that court based its decision on (1) petitioner’s failure to overcome the 12 || presumption that counsel’s performance fell within the range of competent representation, or (2) 13 || petitioner’s failure to demonstrate prejudice. Accordingly, relief in this court is barred by 28 14 | U.S.C. § 2254(d). Accordingly, IT IS HEREBY RECOMMENDED that the petition for writ of 15 || habeas corpus be denied. 16 These findings and recommendations are submitted to the United States District Judge 17 || assigned to the case, pursuant to the provisions of 28 U.S.C. §636(b)(). Within twenty-one days 18 || after being served with these findings and recommendations, any party may file written 19 || objections with the court and serve a copy on all parties. Such a document should be captioned 20 | “Objections to Magistrate Judge’s Findings and Recommendations.” If petitioner files objections, 21 || he shall also address whether a certificate of appealability should issue and, if so, why and as to 22 || which issues. See 28 U.S.C. § 2253(c)(2). Any reply to the objections shall be served and filed 23 || within fourteen days after service of the objections. The parties are advised that failure to file 24 | objections within the specified time may waive the right to appeal the District Court’s order. 25 | Martinez v. Ylist, 951 F.2d 1153 (9th Cir. 1991). 26 || DATED: August 6, 2020 Af

27 ALLISON CLAIRE 28 UNITED STATES MAGISTRATE JUDGE 17