CURTIS FAUBER V. RONALD DAVIS, No. 17-99001 (9th Cir. 2022)
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In 1988, a California jury sentenced Petitioner to death for murdering another person with an ax. The California Supreme Court affirmed Petitioner’s conviction and sentence on direct appeal and later denied his state habeas petition. Petitioner now seeks federal habeas relief. He argues that the state prosecutor improperly vouched for a witness’s credibility, that his attorney was ineffective in not objecting to the vouching, and that the state trial court, in the penalty phase, improperly excluded the prosecution’s earlier plea offer to Petitioner as claimed mitigating evidence.
The Ninth Circuit affirmed the district court’s judgment denying Petitioner’s habeas corpus petition. The court that no clearly established federal constitutional law holds that an unaccepted plea offer qualifies as evidence in mitigation that must be admitted in a capital penalty proceeding. The court held that regardless, Petitioner cannot show prejudice. The court wrote that given the extreme aggravating factors that the State put forward coupled with Petitioner’s already extensive but unsuccessful presentation of mitigating evidence, there is no basis to conclude that the jury would have reached a different result if it had considered Petitioner’s unaccepted plea.
Court Description: Habeas Corpus/Death Penalty The panel affirmed the district court’s judgment denying Curtis Fauber’s habeas corpus petition challenging his murder conviction and death sentence. The district court certified four claims for appeal. Claims 10(a) and (c) and Claim 41(a)(1)(16) all concerned the prosecutor’s alleged improper vouching for the credibility of witness Brian Buckley by reading to the jury the plea agreement in which Buckley agreed to testify against Fauber. In Claim 41(a)(1)(16), Fauber argued that trial counsel was ineffective for failing to object to the alleged vouching. The panel held that under Antiterrorism and Effective Death Penalty Act (AEDPA), the California Supreme Court’s decision rejecting Fauber’s ineffective assistance claim was not contrary to or an unreasonable application of clearly established law; the California Supreme Court could reasonably conclude that even if counsel acted deficiently, there was no prejudice. In Claims 10(a) and (c), Fauber argued that the alleged vouching, and the state court’s allowance of the same, violated Fauber’s due process rights. The panel held that Fauber procedurally defaulted his due process vouching claims, and that even if the due process claims were not procedurally defaulted, they would fail on the merits because the alleged vouching was harmless. FAUBER V. DAVIS 3 In Claim 28(c), Fauber argued that the state trial court improperly excluded his unaccepted plea offer as mitigating evidence at the penalty phase. The panel held that no clearly established federal constitutional law holds that an unaccepted plea offer qualifies as evidence in mitigation that must be admitted in a capital penalty proceeding. The panel held that regardless, Fauber cannot show prejudice. The panel wrote that given the extreme aggravating factors that the State put forward coupled with Fauber’s already extensive but unsuccessful presentation of mitigating evidence, there is no basis to conclude that the jury would have reached a different result if it had considered Fauber’s unaccepted plea. The panel denied Fauber’s request to expand the certificate of appealability to include four additional claims. Dissenting in part, Judge Watford would grant Fauber’s habeas petition as to the exclusion of the plea offer at the penalty phase. Noting that the prosecutor argued that Fauber must be executed because he was likely to kill again if sentenced to life in prison, Judge Watford wrote that the trial court’s exclusion of the prior offer of a plea deal with a life sentence prevented Fauber from rebutting this claim, thereby violating clearly established federal law, an error that was not harmless. 4 FAUBER V. DAVIS
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