Cummings v. Martel, No. 11-99011 (9th Cir. 2015)
Annotate this CasePetitioner, convicted of first-degree murder and sentenced to death for killing a police officer, appealed the district court's denial of his habeas petition under 28 U.S.C. 2254. Petitioner alleged that the prosecution violated his due process rights by calling a witness who served as a courtroom bailiff and security officer during a portion of petitioner's trial. The court concluded that the state court's denial of petitioner's Turner v. Louisiana claim was not unreasonable because Turner only applies where the testifying deputy was both a key witness and had continuous and intimate contacts with jurors. The court concluded that the state court did not unreasonably apply Batson v. Kentucky in upholding the prosecutor's strike of two African American jurors. Finally, the court rejected petitioner's ineffective-assistance-of-counsel claim, concluding that counsel's performance was not deficient for failure to present mitigating evidence where the mitigating effect of the evidence that the jury did not hear was limited in scope and would have opened the door to inflammatory and prejudicial aggravating evidence. Accordingly, the state court did not unreasonably apply Strickland v. Washington in this case. The court denied the petition for habeas relief.
Court Description: Habeas Corpus / Death Penalty. The panel affirmed the district court’s denial of Raynard Cummings’s habeas corpus petition challenging his conviction for first-degree murder and death sentence for killing Los Angeles Police Officer Paul Verna. Cummings alleged that the prosecution violated his due process rights under Turner v . Louisiana, 379 U.S. 466 (1965), by calling as a witness a deputy who served as a courtroom bailiff and security officer during a portion of Cummings’s trial. The panel held that even under AEDPA’s deferential review, the California Supreme Court erred in determining that the bailiff, who told the jury that Cummings had confessed to shooting Verna, was not a key prosecution witness under Turner. The panel affirmed the district court’s denial of relief on this claim because the California Supreme Court’s determination that Cummings did not satisfy the second Turner requirement – that the testifying deputy had continuous and intimate contact with jurors – was neither contrary to nor an unreasonable application of clearly established federal law. The panel granted a Certificate of Appealability on Cummings’s claim that the prosecutor violated Batson v. Kentucky, 476 U.S. 79 (1986), by exercising peremptory strikes against two prospective African American jurors. The panel concluded that the California Supreme Court did not CUMMINGS V. MARTEL 3 unreasonably apply Batson to the facts in determining that Cummings did not establish that race was a substantial motivating factor in the prosecutor’s decision to strike the prospective jurors. Affirming the district court’s denial of Cummings’s ineffective assistance of counsel claim, the panel held that the California Supreme Court had a reasonable basis to conclude that Cummings was not prejudiced by his lawyers’ presentation of mitigation of evidence at the penalty phase of his trial. Chief Judge Thomas concurred in part and dissented in part. He agreed with the majority that the Batson and ineffective assistance claims should be denied, but dissented from the conclusion that the due process claim must be denied. He wrote that the California Supreme Court’s decision to affirm the conviction cannot reasonably be squared with Turner and Gonzales v. Beto, 405 U.S. 1052 (1972) (per curiam), in which the Supreme Court made clear that a criminal defendant’s right to a fair trial is infringed when the government solicits key testimony from a bailiff who associated closely with the jury during the defendant’s trial. Judge O’Scannlain concurred in part, dissented in part, and concurred in the judgment. He concurred in the opinion, except as to Section I.A. He wrote separately to explain why the California Supreme Court’s conclusion that the deputy was not a “key witness” under Turner must be afforded AEDPA deference. 4 CUMMINGS V. MARTEL
The court issued a subsequent related opinion or order on April 29, 2016.
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