Ross v. Davis, No. 17-99000 (9th Cir. 2022)
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The Ninth Circuit affirmed the district court's denial of habeas relief to petitioner, who was sentenced to death after being convicted of murder, five counts of robbery, and two counts of rape in concert. The panel concluded that the California Supreme Court on direct appeal reasonably rejected petitioner's claim regarding an erroneous aiding and abetting instruction. Rather, the state court reasonably concluded that the instructions were adequate for the jury to make the requisite culpability finding, especially in light of the exception to the rule of Enmund found in Tison v. Arizona, 481 U.S. 137 (1987) and Tapia v. Roe, 189 F.3d 1052 (9th Cir. 1999).
Although counsel's failure to investigate and present mitigation evidence at the penalty phase was deficient, given the entirety of the evidence before the jury, petitioner's disruptive conduct in front of the jury and the sure-to-be-admitted rebuttal and impeachment evidence that would follow introduction of the mitigation evidence, the panel concluded that the California Supreme Court reasonably concluded that petitioner did not show a reasonable probability that the result would have been different but for counsel's unprofessional errors.
Court Description: Habeas Corpus / Death Penalty. The panel affirmed the district court’s denial of Craig Anthony Ross’s habeas corpus petition in a case in which a jury sentenced Ross to death after convicting him of three counts of murder, five counts of robbery, and two counts of rape in concert. Ross claimed that an erroneous aiding and abetting instruction allowed the jury to find him guilty of the first- degree murder counts without making the finding that he had the intent to kill, and thus the imposition of the death penalty violated the Eighth Amendment under Enmund v. Florida, 458 U.S. 782 (1982). The panel concluded that the California Supreme Court on direct appeal reasonably rejected this claim. The panel wrote that the state court reasonably concluded that the instructions were adequate for the jury to make the requisite culpability finding, especially in light of the exception to the rule of Enmund found in Tison v. Arizona, 481 U.S. 137 (1987), and Tapia v. Roe, 189 F.3d 1052 (9th Cir. 1999). Ross also claimed that his trial counsel’s failure to investigate and present then available mitigation evidence at the penalty phase was ineffective assistance of counsel in violation of the Sixth Amendment under Strickland v. Washington, 466 U.S. 668 (1984). The panel agreed with the district court that counsel’s performance during the penalty phase was deficient. But given the entirety of the ROSS V. DAVIS 3 evidence before the jury, Ross’s disruptive conduct in front of the jury, and the sure-to-be-admitted rebuttal and impeachment evidence that would follow introduction of the mitigation evidence, the panel concluded that the California Supreme Court reasonably concluded that Ross did not show a reasonable probability that the result would have been different but for counsel’s unprofessional errors.
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