FILED UNITED STATES COURT OF APPEALS FEB 19 2015
MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS
SHAWN MALONE KHALIFA, No. 12-56230
Petitioner - Appellant, D.C. No. 5:10-cv-01446-GAF- PLA v. Central District of California, Riverside BRENDA M. CASH, Warden,
Respondent - Appellee. ORDER AMENDING
Before: PREGERSON, TALLMAN, and BEA, Circuit Judges.
The dissent filed on November 25, 2014 is hereby amended. FILED Khalifa v. Cash, No. 12-56230 (Amended Dissent) FEB 19 2015
MOLLY C. DWYER, CLERK PREGERSON, Circuit Judge, dissenting: U.S. COURT OF APPEALS
Shawn Khalifa1 appeals his felony murder conviction arguing his Sixth
Amendment speedy trial rights were violated.
The disposition correctly applied the first Barker factor by finding that the
three-and-a-half year delay was “clearly lengthy and thus presumptively
prejudicial.” The disposition correctly determined that the second factor was
neutral because most of the delay was caused by Khalifa’s co-defendants’ requests
for continuances.
Contrary to the disposition I submit that the third factor regarding the
forcefulness of Khalifa’s assertion of his speedy trial right was not neutral. A
1 Khalifa was just two months beyond his fifteenth birthday when the crime occurred. He and Mark Gardner were acting as lookouts for a burglary while two older boys entered the victim’s home through the front door. Khalifa allegedly snuck through the backdoor and took a handful of candy from the victim’s kitchen. The older boys beat the elderly homeowner to death. Khalifa was found guilty of first degree felony murder and sentenced to twenty-five years to life. Based on Khalifa’s limited participation and his status as a juvenile, this sentence appears unusually harsh. As the Supreme Court has found, children like Khalifa lack maturity and have “an underdeveloped sense of responsibility leading to recklessness, impulsivity, and heedless risk-taking.” Miller v. Alabama, 132 S. Ct. 2455, 2464 (2012). Further, the brain of a fifteen year old is “not yet fully mature in regions and systems related to higher-order executive functions such as impulse control, planning ahead, and risk avoidance.” Id. at 2464, n.5 (internal citations ommitted).
1 defendant’s assertion of his speedy trial right is “entitled to strong evidentiary
weight in determining whether the defendant is being deprived of the right.”
Barker v. Wingo, 407 U.S. 514, 531-32 (1972). Khalifa objected to continuances
on five separate occasions during the eight month period between October 2006
and June 2007. To vindicate his right to a speedy trial he moved to sever his case
from those of his co-defendants. While Khalifa consented to much of the delay,
that consent does not neutralize the fact that he forcefully asserted his speedy trial
rights for eight consecutive months. A delay of eight months on this record is most
likely presumptively prejudicial. See United States v. Gregory, 322 F.3d 1157,
1162 n.3 (9th Cir. 2003). This third factor weighs in favor of Khalifa.
Finally, I submit that Khalifa was prejudiced by the eight month delay.
Prejudice should be assessed by considering “the interests of defendants which the
speedy trial right was designed to protect . . . : (i) to prevent oppressive pretrial
incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit
the possibility that the defense will be impaired.” Barker, 407 U.S. at 532. Here,
the disposition does not explicitly touch upon the first two interests. Khalifa was
prejudiced by his pretrial incarceration. He spent over three years in jail awaiting
trial. Khalifa was arrested on January 30, 2004, three days after the crime was
committed and about two months beyond his fifteenth birthday. His trial started on
2 September 17, 2007, a couple months before his nineteenth birthday. In Barker,
the Supreme Court determined that “time spent in jail awaiting trial has a
detrimental impact on the individual.” Id. Khalifa’s three-and-a-half year pretrial
incarceration and the anxiety it caused him–a teenager awaiting trial for felony
murder–weigh in favor of finding that Khalifa was prejudiced by the delay.
The delay also impaired, and thus prejudiced, Khalifa’s defense because the
only non-biased eyewitnesses, one of whom was Erick Castillo, left the country
and moved to Mexico during the delay. See Id. at 532 (“If witnesses . . . disappear
during a delay, the prejudice is obvious.”). Because lengthy delays often cause the
loss of exculpatory evidence and testimony, “impairment of one's defense is the
most difficult form of speedy trial prejudice to prove.” Doggett v. United States,
505 U.S. 647, 655 (1992). For this reason, “consideration of prejudice is not
limited to the specifically demonstrable.” Id.
Further, the California Court of Appeal’s factual determination that witness
Castillo’s preliminary hearing testimony was consistent with co-defendant Mark
Gardner’s testimony was refuted by clear and convincing evidence. Khalifa’s
appellate brief demonstrated that Castillo’s preliminary hearing testimony varied
from Gardner’s testimony on several points; most notably co-defendant Gardner
testified to facts that made him appear less culpable. Gardner testified that he was
3 only in the side yard briefly before waiting in front of the house for Khalifa,
whereas witness Castillo saw Khalifa and Gardner leave the side yard together.
The jury may have discounted Gardner’s account as biased if Castillo had testified
at trial because it appears as if Gardner may have twisted the facts to minimize his
involvement. The jury might have taken this into consideration when weighing
Gardner’s credibility. Co-defendant Gardner also portrayed Khalifa as having a
more active role in the crime by testifying that Khalifa exited the home only
seconds before Rivera and Pena (the men who beat the victim to death), not five to
ten minutes before as explained by Castillo. Gardner’s version makes it more
likely that Khalifa was in the home during the victim’s murder, however, Castillo’s
account presents an issue as to Khalifa’s presence during and his knowledge of the
killing. Had the jury heard these varied accounts it would have had to weigh the
credibility of both witnesses and it is likely there would have been more discussion
about co-defendant Gardner’s motivations for testifying. Likely, there also would
have been a more in-depth consideration of the extent of Khalifa’s involvement.
For these reasons, the loss of Castillo as a witness at trial prejudiced Khalifa.
Three of the four Barker factors weigh in Khalifa’s favor and support a
finding of a violation to his right to a speedy trial under the Sixth Amendment.
Therefore, Khalifa’s habeas petition should have been granted.
4 The only issue before this panel was whether Khalifa was denied his right to
a speedy trial. Before the state courts and the district court, Khalifa challenged the
constitutionality of his 25 years to life sentence as unconstitutionally cruel and
unusual on account of his age and his relative culpability for the murder. Before
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FILED UNITED STATES COURT OF APPEALS FEB 19 2015
MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS
SHAWN MALONE KHALIFA, No. 12-56230
Petitioner - Appellant, D.C. No. 5:10-cv-01446-GAF- PLA v. Central District of California, Riverside BRENDA M. CASH, Warden,
Respondent - Appellee. ORDER AMENDING
Before: PREGERSON, TALLMAN, and BEA, Circuit Judges.
The dissent filed on November 25, 2014 is hereby amended. FILED Khalifa v. Cash, No. 12-56230 (Amended Dissent) FEB 19 2015
MOLLY C. DWYER, CLERK PREGERSON, Circuit Judge, dissenting: U.S. COURT OF APPEALS
Shawn Khalifa1 appeals his felony murder conviction arguing his Sixth
Amendment speedy trial rights were violated.
The disposition correctly applied the first Barker factor by finding that the
three-and-a-half year delay was “clearly lengthy and thus presumptively
prejudicial.” The disposition correctly determined that the second factor was
neutral because most of the delay was caused by Khalifa’s co-defendants’ requests
for continuances.
Contrary to the disposition I submit that the third factor regarding the
forcefulness of Khalifa’s assertion of his speedy trial right was not neutral. A
1 Khalifa was just two months beyond his fifteenth birthday when the crime occurred. He and Mark Gardner were acting as lookouts for a burglary while two older boys entered the victim’s home through the front door. Khalifa allegedly snuck through the backdoor and took a handful of candy from the victim’s kitchen. The older boys beat the elderly homeowner to death. Khalifa was found guilty of first degree felony murder and sentenced to twenty-five years to life. Based on Khalifa’s limited participation and his status as a juvenile, this sentence appears unusually harsh. As the Supreme Court has found, children like Khalifa lack maturity and have “an underdeveloped sense of responsibility leading to recklessness, impulsivity, and heedless risk-taking.” Miller v. Alabama, 132 S. Ct. 2455, 2464 (2012). Further, the brain of a fifteen year old is “not yet fully mature in regions and systems related to higher-order executive functions such as impulse control, planning ahead, and risk avoidance.” Id. at 2464, n.5 (internal citations ommitted).
1 defendant’s assertion of his speedy trial right is “entitled to strong evidentiary
weight in determining whether the defendant is being deprived of the right.”
Barker v. Wingo, 407 U.S. 514, 531-32 (1972). Khalifa objected to continuances
on five separate occasions during the eight month period between October 2006
and June 2007. To vindicate his right to a speedy trial he moved to sever his case
from those of his co-defendants. While Khalifa consented to much of the delay,
that consent does not neutralize the fact that he forcefully asserted his speedy trial
rights for eight consecutive months. A delay of eight months on this record is most
likely presumptively prejudicial. See United States v. Gregory, 322 F.3d 1157,
1162 n.3 (9th Cir. 2003). This third factor weighs in favor of Khalifa.
Finally, I submit that Khalifa was prejudiced by the eight month delay.
Prejudice should be assessed by considering “the interests of defendants which the
speedy trial right was designed to protect . . . : (i) to prevent oppressive pretrial
incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit
the possibility that the defense will be impaired.” Barker, 407 U.S. at 532. Here,
the disposition does not explicitly touch upon the first two interests. Khalifa was
prejudiced by his pretrial incarceration. He spent over three years in jail awaiting
trial. Khalifa was arrested on January 30, 2004, three days after the crime was
committed and about two months beyond his fifteenth birthday. His trial started on
2 September 17, 2007, a couple months before his nineteenth birthday. In Barker,
the Supreme Court determined that “time spent in jail awaiting trial has a
detrimental impact on the individual.” Id. Khalifa’s three-and-a-half year pretrial
incarceration and the anxiety it caused him–a teenager awaiting trial for felony
murder–weigh in favor of finding that Khalifa was prejudiced by the delay.
The delay also impaired, and thus prejudiced, Khalifa’s defense because the
only non-biased eyewitnesses, one of whom was Erick Castillo, left the country
and moved to Mexico during the delay. See Id. at 532 (“If witnesses . . . disappear
during a delay, the prejudice is obvious.”). Because lengthy delays often cause the
loss of exculpatory evidence and testimony, “impairment of one's defense is the
most difficult form of speedy trial prejudice to prove.” Doggett v. United States,
505 U.S. 647, 655 (1992). For this reason, “consideration of prejudice is not
limited to the specifically demonstrable.” Id.
Further, the California Court of Appeal’s factual determination that witness
Castillo’s preliminary hearing testimony was consistent with co-defendant Mark
Gardner’s testimony was refuted by clear and convincing evidence. Khalifa’s
appellate brief demonstrated that Castillo’s preliminary hearing testimony varied
from Gardner’s testimony on several points; most notably co-defendant Gardner
testified to facts that made him appear less culpable. Gardner testified that he was
3 only in the side yard briefly before waiting in front of the house for Khalifa,
whereas witness Castillo saw Khalifa and Gardner leave the side yard together.
The jury may have discounted Gardner’s account as biased if Castillo had testified
at trial because it appears as if Gardner may have twisted the facts to minimize his
involvement. The jury might have taken this into consideration when weighing
Gardner’s credibility. Co-defendant Gardner also portrayed Khalifa as having a
more active role in the crime by testifying that Khalifa exited the home only
seconds before Rivera and Pena (the men who beat the victim to death), not five to
ten minutes before as explained by Castillo. Gardner’s version makes it more
likely that Khalifa was in the home during the victim’s murder, however, Castillo’s
account presents an issue as to Khalifa’s presence during and his knowledge of the
killing. Had the jury heard these varied accounts it would have had to weigh the
credibility of both witnesses and it is likely there would have been more discussion
about co-defendant Gardner’s motivations for testifying. Likely, there also would
have been a more in-depth consideration of the extent of Khalifa’s involvement.
For these reasons, the loss of Castillo as a witness at trial prejudiced Khalifa.
Three of the four Barker factors weigh in Khalifa’s favor and support a
finding of a violation to his right to a speedy trial under the Sixth Amendment.
Therefore, Khalifa’s habeas petition should have been granted.
4 The only issue before this panel was whether Khalifa was denied his right to
a speedy trial. Before the state courts and the district court, Khalifa challenged the
constitutionality of his 25 years to life sentence as unconstitutionally cruel and
unusual on account of his age and his relative culpability for the murder. Before
our court, Khalifa petitioned for a certificate of appealability challenging the
constitutionality of his sentence as cruel and unusual under the Eighth
Amendment, but the motion was denied. Docket 3. Even the deputy attorney
general in this case acknowledged the harshness of Khalifa’s sentence for a kid
who went into a house and filled his pockets with candy.
Khalifa played the relatively minor role of lookout during the robbery of an
elderly man. Much of the evidence against Khalifa came from Gardner, one of
Khalifa’s co-defendants who testified for the prosecution in exchange for a lighter
sentence. Gardner testified that the night of the offense, he was hanging out with
Rivera, Pena, and Khalifa. Khalifa was the youngest at 15 years of age. The group
began discussing their need for money and someone suggested robbing an elderly
neighbor.
The four boys walked toward the victim’s home, Rivera and Pena in front
and Gardner and Khalifa following behind. Gardner explained that Rivera and
Pena told Gardner and Khalifa to wait outside while Rivera and Pena went up to
5 the victim’s front door and entered. Gardner testified that he and Khalifa went
through a gate leading to the victim’s backyard. Gardner also testified that Khalifa
entered the victim’s home, was inside the kitchen for a couple minutes, and looked
through the kitchen drawers. Khalifa took candy from the victim’s kitchen and
then left through the back door.
There was no evidence that Khalifa saw the victim being beaten, but the
evidence indicates that Khalifa may have heard the victim moan. Khalifa and
Gardner then returned to the front of the home. After killing the homeowner,
Rivera and Pena came out the front door and drove down the street in the victim’s
car. Khalifa got in the car at the prompting of Rivera and Pena.
Khalifa was tried and convicted of first degree felony murder in connection
with his alleged participation in the burglary and robbery. He was sentenced to 25
years to life, the most severe punishment available for a 15 year old convicted of
first degree murder in California. See Cal. Penal Code § 190.5. In fact, Khalifa
received the same maximum sentence he would have received had he entered
through the front door and participated in the killing of the victim.
He had just turned 15 at the time of the crime. He did not kill anyone and
there is no evidence that he could have foreseen that the victim would be killed; he
entered the victim’s kitchen at the rear of the house and took some candy while
6 two older boys robbed and beat the victim in the living room in the front of the
house. He was sentenced to 25 years to life.
The Supreme Court’s recent decisions tell us that “children are
constitutionally different from adults for purposes of sentencing.” We also are told
by the Court that “when compared to an adult murderer, a juvenile offender who
did not kill or intend to kill has a twice diminished moral culpability.” Miller v.
Alabama, 132 S. Ct. 2455, 2468 (2012) (quoting Graham v. Florida, 130 S.Ct.
2011, 2027 (2010)).
Further, “compared to adults, juveniles have a lack of maturity and an
underdeveloped sense of responsibility; they are more vulnerable or susceptible to
negative influences and outside pressures, including peer pressure; and their
characters are not as well formed.” Graham, 560 U.S. at 68 (internal quotations
omitted).
In addition, as Justice Breyer notes in his concurrence in Miller, the felony
murder rule “traditionally attributes death caused in the course of a felony to all
participants who intended to commit the felony, regardless of whether they killed
or intended to kill. This rule has been based on the idea of transferred intent; the
defendant's intent to commit the felony satisfies the intent to kill required for
murder.” Miller, 132 S.Ct. at 2476 (internal quotations and citations omitted).
7 Justice Breyer further noted that the “theory of transferring a defendant's intent is
premised on the idea that one engaged in a dangerous felony should understand the
risk that the victim of the felony could be killed, even by a confederate. Yet the
ability to consider the full consequences of a course of action and to adjust one's
conduct accordingly is precisely what we know juveniles lack capacity to do
effectively.” Id. (internal citation omitted).
Given Khalifa’s age and his minor involvement in the crime, his sentence
appears unusually harsh and cruel. I believe that this issue should have been
considered.