Opinion
D.C. NO. CV-93-04159-JW
Editorial Note:This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Argued and Submitted March 5, 1998.
Appeal from the United States District Court for the Northern District of California, James Ware, District Judge, Presiding.
Before PREGERSON, FERGUSON, and KLEINFELD, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this Circuit except as provided by 9th Cir. R. 36-3.
Because the parties are familiar with the facts of this case, they will not be recounted here. Upon careful consideration of the record and briefs filed by the parties, we hereby affirm the District Court with respect to the following issues: (1) Caro's entitlement to an evidentiary hearing on his counsel's effectiveness at the guilt phase trial; (2) Caro's entitlement to an evidentiary hearing on his competence to stand trial; (3) Caro's entitlement to an evidentiary hearing on his claim of actual innocence; (4) the constitutionality of the use of shackles at Caro's trial; (5) the constitutionality of his sentence in light of the evidence of other crimes presented; (6) prosecutorial misconduct; (7) the constitutionality of the sentencing court's response to the jury's question; and (8) the effect of two jurors' consideration of extrinsic material. The Court by a published opinion has determined that Caro is entitled to an evidentiary hearing on the issue of the effectiveness of his counsel's assistance at the penalty phase trial.
Standard of Review.
This Court reviews de novo an order granting summary judgment in a habeas case. Ceja v. Stewart, 97 F.3d 1246, 1249 (9th Cir.1996); Bonin v. Calderon, 59 F.3d 815, 823 (9th Cir.1995), cert. denied 516 U.S. 1051, 116 S.Ct. 718, 133 L.Ed.2d 671 (1996); Wade v. Calderon, 29 F.3d 1312, 1315 (9th Cir.1994). The District Court's denial of an evidentiary hearing is reviewed for an abuse of discretion. Swan v.. Peterson, 6 F.3d 1373, 1384 (9th Cir.1993) (citing Greyson v. Kellam, 937 F.2d 1409, 1412 (9th Cir.1991)).
Evidentiary Hearing on Counsel's Effectiveness at the Guilt Phase Trial.
After the District Court issued its opinion, both this Circuit and the United States Supreme Court have determined that the Anti-Terrorism and Effective Death Penalty Act's amendments to 28 U.S.C. § 2254 do not apply retroactively. Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997); see also Jeffries v. Wood, 103 F.3d 827, 827 (9th Cir.1996) (en banc). Under pre-1996 law, Caro is entitled to an evidentiary hearing if (1) he has alleged facts which, if proved, would entitle him to relief; and (2) the state court trier of fact has not, after a full and fair hearing, reliably found the relevant facts. Turner v. Marshall, 63 F.3d 807, 815 (9th Cir.1995) (quoting Tinsley v. Borg, 895 F.2d 520, 530 (9th Cir.1990); see also Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963),rev'd on other grounds by Keeney v. Tamayo-Reyes, 504 U.S. 1, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992); Siripongs v. Calderon, 35 F.3d 1308, 1314 (9th Cir.1994). "The corollary to this is that no hearing is required if either the state court has reliably found the relevant facts, or there are no disputed facts and the claim presents purely a legal question." Hendricks v. Vasquez, 974 F.2d 1099, 1103 (9th Cir.1992), cert. denied 517 U.S. 1111, 116 S.Ct. 1335, 134 L.Ed.2d 485 (1996) (internal citations omitted).
Moreover, this Court has held that "Siripongs does not establish a per se rule requiring an evidentiary hearing whenever petitioner has made out a 'colorable claim' of cause. It recognizes only that where such a claim has been made out, it is 'generally likely' that a hearing will be required on the issue." Williams v.. Calderon, 52 F.3d 1465, 1484 (9th Cir.1995).
Counsel's assistance can only be deemed ineffective if it falls below an "objective standard of reasonableness." Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Effectiveness must be judged as of the time the legal services were rendered so as to minimize the distortions of hindsight. Bonin, 59 F.3d at 835. In addition, the deficient performance must have rendered the results of the trial unreliable or fundamentally unfair. Id. at 687; see also Lockhart v. Fretwell, 506 U.S. 364, 369, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993).
Failure to investigate a defendant's organic brain damage or other mental impairments may constitute ineffective assistance of counsel. See, e.g., Hendricks v. Calderon, 70 F.3d 1032, 1043-44 (9th Cir.1995), cert. denied 517 U.S. 1111, 116 S.Ct. 1335, 134 L.Ed.2d 485 (1996); Evans v. Lewis, 855 F.2d 631, 637-38 (9th Cir.1988). In addition, in Siripongs v. Calderon, 35 F.3d 1308, 1316 (9th Cir.1994), this Court recognized that failure to present evidence necessary to bridge a cultural gap may constitute ineffective assistance of counsel. Counsel have a duty to conduct a reasonable investigation into these areas so that they are able to make informed decisions about how best to represent their clients. Strickland, 466 U.S. at 691; Sanders v. Ratelle, 21 F.3d 1446, 1456 (9th Cir.1994).
Nevertheless, Caro has failed to show that counsel's failure to investigate his neurological impairments and cultural background prejudiced his defense at the guilt phase.
Evidentiary Hearing on Caro's Competency to Stand Trial.
Caro claims that the state trial court failed in its duty to hold a hearingsua sponte to determine his competency to stand trial. Caro now seeks an evidentiary hearing on this issue. The conviction of a person while incompetent violates due process. Pate v. Robinson, 383 U.S. 375, 378, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966). The test for competency is whether the defendant "lacks sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding of the proceedings against him." Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960). "In a habeas proceeding, a petitioner is entitled to an evidentiary hearing on the issue of competency to stand trial if he presents sufficient facts to create a real and substantial doubt as to his competency, even if those facts were not presented to the trial court." Boag v. Raines, 769 F.2d 1341, 1343 (9th Cir.1985). Moreover, the trial court is required to order a hearing sua sponte whenever it entertains or reasonably should entertain such a good faith doubt. Chavez v. United States, 656 F.2d 512, 515 & 516 n. 1 (9th Cir.1981). Factors to consider include irrational behavior, demeanor at trial, and prior medical opinions regarding competence. Drope v. Missouri, 420 U.S. 162, 180, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975); Boag, 769 F.2d at 1343.
The Court first notes that counsel for Caro did not request a competency hearing. Although it is unlikely that the right to a competency hearing can be waived, "judges must depend to some extent on counsel to bring issues into focus." Drope, 420 U.S. at 176-77; see also Hernandez v. Ylst, 930 F.2d 714, 718 (9th Cir.1991) (while counsel's opinion is certainly not determinative, "a defendant's counsel is in the best position to evaluate a client's comprehension of the proceedings"). In addition, the record indicates that Caro was able to understand the proceedings and assist his attorney at trial. An evidentiary hearing is therefore unnecessary.
Evidentiary Hearing on Caro's Actual Innocence.
Caro's freestanding claim of actual innocence pursuant to Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993), also fails. In Herrera, a majority of the Supreme Court assumed without deciding that the execution of an innocent person would violate the Constitution. A different majority of the Supreme Court explicitly so held. Compare id. at 417 with id. at 419 and 430-37; see also Carriger v. Stewart, 132 F.3d 463, 476 (9th Cir.1997) (en banc). Although the Supreme Court did not specify the standard applicable to such a claim, it noted that the threshold would be "extraordinarily high" and that the showing would have to be "truly persuasive." Herrera, 506 U.S. at 417.
An en banc panel of this Court recently determined that a petitioner must affirmatively prove that he is innocent. Carriger, 132 F.3d at 476-77. The Carriger Court also distinguished Herrera, freestanding "actual innocence" claims from the "actual innocence" claims pursuant to Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). Carriger, 132 F.3d at 477. Schlup actual innocence claims are available when constitutional claims are procedurally barred, but may be heard to prevent a miscarriage of justice. The threshold is lower for Schlup claims because the claims of constitutional error reduce the degree of deference accorded to the conviction. Id. Caro's claims are not procedurally barred. Schlup and its progeny are therefore inapplicable.
Caro does not claim that he did not actually commit the crimes for which he has been sentenced to death. Rather, he claims that he lacked the requisite mens rea due to his diminished mental capacity. A defendant presenting a freestanding actual innocence claim must show that he did not in fact do the act of which he was convicted. Such was the case in both Herrera and Carriger. Any other definition would broaden Herrera relief beyond the exceedingly narrow confines envisioned by the Supreme Court.
Evidentiary Hearing on the Competence of Caro's Psychiatric Assistance.
Caro claims that Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985) guarantees him the right to competent psychiatric assistance. In that case, the Supreme Court stated that "when a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant has access to a competent psychiatrist...." Id. at 83.
In Harris v. Vasquez, 949 F.2d 1497 (9th Cir.1990), however, this Court refused to subject experts provided by the state to a competency review. "Allowing such battles of psychiatric opinions during successive collateral challenges to a death sentence would place federal courts in a psycho-legal quagmire resulting in the total abuse of the habeas process." Id. at 1518. Caro's claim is thus precluded by Ninth Circuit precedent that cannot be overturned by this panel.
The Introduction of Evidence Regarding Uncharged Crimes and a Crime Dismissed Pursuant to a Prior Guilty Plea.
Nor were Caro's Eighth and Fourteenth Amendment rights violated at the penalty phase by the introduction of evidence concerning two uncharged murders and a rape dismissed pursuant to a guilty plea. The trial court instructed the jury that it must unanimously agree beyond a reasonable doubt that Caro committed each of the murders before it could consider the evidence in connection with the proper penalty to be imposed for the murders of which he was convicted. The California Supreme Court has held that the trial court's instruction actually exceeded the requirements of California law. People v. Caro, 46 Cal.3d 1035, 251 Cal.Rptr. 757, 761 P.2d 680, 693 (Cal.1988). It would have been permissible under California law for each juror who did find that Caro had committed the uncharged murders to consider that evidence in aggravation of his penalty. Id.
This Circuit has approved the admission of uncharged offenses at a death penalty hearing. See McDowell v. Calderon, 107 F.3d 1351, 1366 (9th Cir.1997), modified on other grounds by 116 F.3d 364 (9th Cir.1997); cf. also Bonin, 59 F.3d at 839. In addition, the Supreme Court has noted that sentencing judges traditionally consider past criminal behavior, even if it did not result in a conviction. See United States v. Watts, 519 U.S. 148, 117 S.Ct. 633, 635, 136 L.Ed.2d 554 (1997); Nichols v. United States, 511 U.S. 738, 114 S.Ct. 1921, 1928, 128 L.Ed.2d 745 (1994); Williams v. New York, 337 U.S. 241, 245, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949). Thus, Caro was not deprived of his Eighth and Fourteenth Amendment rights.
Nor did the introduction of evidence of a rape dismissed pursuant to a guilty plea violate Caro's due process rights. In Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), the Supreme Court established that plea bargains implicate due process. "[W]hen a plea bargain rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled." Id. at 262. Caro's plea agreement did not specifically prohibit the use of the facts underlying the rape in subsequent criminal proceedings. There is no evidence that Caro's guilty plea was "induced" by a promise not to raise the rape at the penalty phase of future, unrelated trials.
Prosecutorial Misconduct.
The prosecutor's comments comparing the "opportunities" that Caro and his victims had enjoyed did not constitute misconduct rendering Caro's sentencing hearing fundamentally unfair or his sentence unreliable. In Payne v. Tennessee, 501 U.S. 808, 827, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991), the Supreme Court held that victim impact evidence is admissible at capital sentencing hearings and that the prosecution may argue the human cost of a crime. Admission of such evidence and argument will only be deemed unconstitutional where it renders the sentence fundamentally unfair. Id. at 825; see also Gretzler v. Stewart, 112 F.3d 992, 1009 (9th Cir.1997). The prosecutor's comments did not render Caro's sentencing hearing fundamentally unfair; they simply reminded the jury of the "human cost" of his crimes. Payne, 501 U.S. at 827. Nor did the comments render Caro's sentence unreliable.
Juror Inquiry.
Relying on Simmons v. South Carolina, 512 U.S. 154, 156, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994), Caro claims that his due process rights were violated when the trial court refused to clarify juror misunderstanding regarding the meaning of life imprisonment without possibility of parole. The Supreme Court has recently held that Simmons is a new rule within the meaning of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), "and thereby inapplicable to an already final death sentence." O'Dell v. Netherland, 521 U.S. 151, 117 S.Ct. 1969, 1971, 138 L.Ed.2d 351 (1997). This claim is therefore Teague-barred.
Juror Consideration of Extraneous Material.
Caro claims that he was deprived of his Constitutional rights because two penalty phase jurors read a news article concerning the case. Caro also claims that this prejudice was substantially exacerbated when one of the jurors concealed the fact that she read the article after being directly questioned about it by the judge.
Juror exposure to extraneous information deprives a defendant of the Sixth Amendment rights to confrontation, cross-examination and assistance of counsel. Lawson v. Borg, 60 F.3d 608, 612 (9th Cir.1995); Dickson v. Sullivan, 849 F.2d 403, 406 (9th Cir.1988). However, habeas relief is required only if the jury's consideration of the extraneous information had a "substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). Caro has failed to show that the juror misconduct in this case had a substantial and injurious effect on the jury's verdict.
Constitutionality of Shackles.
During the penalty phase of his capital trial, Caro was shackled, given a knee brace, and handcuffed to his chair. Habeas relief is only granted if the "chaining had substantial and injurious effect or influence in determining the jury's verdict." Castillo v. Stainer, 997 F.2d 669 (9th Cir.1993) (quoting Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993)).
Before a trial court orders a defendant shackled, it must first engage in a two-step process. "First, the court must be persuaded by compelling circumstances that some measure [is] needed to maintain security in the courtroom. Second, the court must pursue less restrictive alternatives before imposing physical restraints." Duckett v. Godinez, 67 F.3d 734, 748 (9th Cir.1995). In addition, this Court has held that "due process requires that shackles be imposed only as a last resort." Spain v. Rushen, 883 F.2d 712, 729 (9th Cir.1989).
The court's decision was justified by Caro's repeated escape attempts. The court investigated the feasibility of less restrictive alternatives and, upon finding that none were available, took reasonable measures to protect Caro's presumption of innocence. The use of shackles was proper.
The Court hereby affirms the judgment of the District Court denying the petition for writ of habeas corpus only on the guilt phase of petitioner's sentence. Petitioner is awarded one half of his costs on appeal.