-VCF Cary W. Williams v. Renee Baker, et al (DEATH PENALTY), No. 2:1998cv00056 - Document 196 (D. Nev. 2012)
Court Description: ORDER Denying 135 Amended Petition for Writ of Habeas Corpus filed by Cary Wallace Williams. The Clerk shall enter Judgment accordingly. IT IS FURTHER ORDERED that a Certificate of Appealabilty is issued as to the court's resolution of Claims One(G) and Sixteen. The Clerk of Court shall substitute Renee Baker for E.K. McDaniel as the respondent warden in this action. Signed by Judge Philip M. Pro on 07/01/2012. (Copies have been distributed pursuant to the NEF - AC)
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-VCF Cary W. Williams v. Renee Baker, et al (DEATH PENALTY) Doc. 196 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF NEVADA 10 11 CARY WALLACE WILLIAMS, Petitioner, 12 13 vs. 14 RENEE BAKER,1 et al., 15 Respondents. 16 17 18 ) ) ) ) ) ) ) ) ) ) / 2:98-CV-0056-PMP-VCF ORDER Before the court for a decision on the merits is an application for a writ of habeas corpus filed by Cary Wallace Williams, a Nevada prisoner sentenced to death. ECF No. 135.2 19 I. FACTUAL AND PROCEDURAL HISTORY 20 On August 18, 1982, a grand jury for the Second Judicial District Court for Washoe County, 21 Nevada, handed down an indictment charging Williams with murder, manslaughter, and burglary. 22 Two months earlier, Williams had broke into the Reno home of Allen and Katherine Carlson, got a 23 1 24 Renee Baker is substituted for her predecessor, E.K. McDaniel, as Warden of Ely State Prison. Fed. R. Civ. P. 25(d). 25 2 26 Docket entries from number 117 forward have been imaged for the purposes of CM/ECF, the court’s electronic filing system. All citations to the record for documents that have been imaged (i.e., ECF No. 117 and above) refer to the CM/ECF attachment and page numbers. Citations to the record for document numbers 1 through 116 refer to the hard-copy file maintained by the court. Dockets.Justia.com 1 knife from the kitchen, and proceeded to the master bedroom, where he stabbed Katherine to death. 2 Katherine’s unborn daughter, eight months in utero, died from lack of oxygen.3 On the first day of jury selection for his trial (December 6, 1982), Williams entered a plea of 3 4 guilty to the burglary charge. On December 13, 1982, after four days of jury selection and one day of 5 testimony, Williams entered pleas of guilty to the other two charges – i.e., murder in the first degree 6 and manslaughter. On January 4, 1983, a penalty hearing began before a three-judge panel. On 7 January 6, 1983, the panel found four aggravating circumstances: that the murder was committed 8 while the defendant was engaged in the commission of a burglary, the murder was committed while 9 the defendant was engaged in the commission of a robbery with the use of a deadly weapon, the 10 murder was committed by the defendant for the purpose of avoiding and preventing his lawful arrest, 11 and the murder committed by the defendant involved depravity of mind and torture. The panel found 12 “no mitigating circumstances to outweigh” the aggravating circumstances, and sentenced Williams 13 to death. 14 Judgment was entered on January 13, 1983. Williams appealed to the Nevada Supreme 15 Court. On February 3, 1983, while the appeal was pending, Williams filed a pro se petition for 16 post-conviction relief in the Second Judicial District Court. On July 19, 1983, the Nevada Supreme Court granted the state’s motion to hold the direct 17 18 appeal in abeyance until the post-conviction proceedings were concluded. On October 1, 1984, 19 Williams, now represented by counsel, filed a supplemental petition for post-conviction relief in the 20 Second Judicial District Court. On November 2, 1984, the district court held an evidentiary hearing 21 on the claims raised in the initial pro se petition and the supplemental petition. On November 7, 22 1984, the district court denied relief. Williams appealed to the Nevada Supreme Court. On May 29, 23 1987, the Nevada Supreme Court consolidated the proceedings on direct appeal and collateral 24 25 26 3 Two other defendants, Charles Wilkinson and Harvey Young, were charged in separate proceeding with participating in the burglary and murder. 2 1 review, and affirmed the conviction and sentence and the denial of post-conviction relief. Williams 2 v. State, 737 P.2d 508 (Nev. 1987). 3 On September 23, 1987, Williams filed an initial pro se federal habeas petition this court that 4 was assigned case number CV-N-87-471-ECR. The Federal Public Defender was appointed to 5 represent Williams. On May 20, 1988, United States District Judge Edward C. Reed, Jr., dismissed 6 the petition without prejudice. On July 6, 1988, Williams filed another petition for post-conviction 7 relief in the Second Judicial District Court. 8 On July 8, 1988, the Second Judicial District Court, without holding an evidentiary 9 hearing, denied the second petition for post-conviction relief. Williams filed a notice of appeal to 10 the Nevada Supreme Court the same day. Also on that day, Williams filed a petition for writ of 11 habeas corpus in the First Judicial District Court for Nevada. 12 On July 11, 1988, without conducting an evidentiary hearing, the First Judicial District Court 13 denied the habeas petition on the ground that the claims contained therein had already been rejected 14 by the Nevada Supreme Court. Williams filed a notice of appeal. On July 12, 1988, the Nevada 15 Supreme Court consolidated the appeals from the First and Second Judicial District Courts and 16 dismissed them. That same day, Williams filed a federal habeas petition in this court that was 17 assigned case number CV-S-88-928-LDG(LRL). 18 On June 5, 1989, this court granted Williams’s motion for leave to return to state court based 19 on the allegation that he entered his guilty plea to the murder based on sworn statements of a witness 20 who made subsequent sworn statements that the earlier statements were false and were motivated by 21 the witness’s desire to earn a lesser prison sentence. After unsuccessfully seeking relief in the 22 Nevada courts, Williams filed, on November 30, 1990, a second amended federal petition in this 23 court. 24 25 On December 31, 1992, Williams filed a petition for writ of habeas corpus in the Seventh Judicial District Court for Nevada. On April 20, 1993, this court dismissed the federal petition 26 3 1 without prejudice. On July 16, 1993, Williams filed an amended petition for post-conviction relief 2 in the state proceeding. 3 On December 1, 1995, the state district court held an evidentiary hearing on Williams’s first 4 amended petition. On August 15, 1996, the court granted the State’s motion to dismiss on the 5 ground that the issues were without merit because they had already been presented or should have 6 been presented in previous petitions. Williams filed an appeal that was dismissed by the Nevada 7 Supreme Court on August 29, 1997. 8 On April 14, 1998, this court granted Williams leave to file the federal petition initiating the 9 instant action. On September 17, 1999, with the Federal Public Defender having been appointed as 10 counsel, Williams filed an amended petition for writ of habeas corpus, which was followed by a 11 second amended petition filed on May 30, 2002. On May 6, 2003, pursuant to a stipulation by the 12 parties, the court held this proceeding in abeyance to allow another attempt at exhaustion. 13 On March 3, 2003, Williams filed a state habeas petition in the Second Judicial District 14 Court. On December 30, 2004, the state court denied relief without setting an evidentiary hearing, 15 stating that the petition was untimely and “failed to plead facts which would support a finding of 16 good cause and prejudice.” After Williams appealed, the Nevada Supreme Court issued, on 17 December 8, 2006, an Order of Affirmance concluding that the burglary and robbery aggravators 18 should be stricken pursuant to McConnell v. State, 102 P.3d 606 (Nev. 2004). Even so, the state 19 supreme court reweighed the remaining aggravators (i.e., torture and depravity of mind and 20 avoidance of lawful arrest) and concluded beyond a reasonable doubt that the three-judge sentencing 21 panel still would have found Williams death eligible and imposed a death sentence. 22 Both parties filed a petition for rehearing. On January 16, 2007, the Nevada Supreme Court 23 denied both petitions. Williams then filed a petition for rehearing en banc. In an order entered July 24 5, 2007, the state supreme court denied en banc reconsideration. In doing so, the court explained at 25 length why it determined that one of Williams’s ineffective assistance claims was procedurally 26 4 1 barred notwithstanding Williams’s argument that he could demonstrate a fundamental miscarriage of 2 justice. 3 On September 21, 2007, this court granted Williams’s motion to reopen these proceedings; 4 and, on October 24, 2007, Williams filed his third amended petition for writ of habeas corpus. ECF 5 Nos. 134/135. On August 8, 2008, respondents filed a motion to dismiss contending that several 6 claims in the petition are either barred by the doctrine of procedural default or time-barred by 28 7 U.S.C. § 2244(d). ECF No. 145. Pursuant to that motion, this court dismissed several claims from 8 the amended petition. ECF No. 165. Claims One(A, B, F, G), Two, Four, Eight and Sixteen remain 9 before the court for a decision on the merits.4 10 II. STANDARDS OF REVIEW 11 This action was initiated on January 12, 1998. Because this action was initiated after 12 April 24, 1996, the amendments to 28 U.S.C. § 2254 enacted as part of the Antiterrorism and 13 Effective Death Penalty Act (AEDPA) apply. See Lindh v. Murphy, 521 U.S. 320, 336 (1997); 14 Van Tran v. Lindsey, 212 F.3d 1143, 1148 (9th Cir.2000), overruled on other grounds by Lockyer v. 15 Andrade, 538 U.S. 63 (2003); see also Reply at ECF No. 182, pp. 5, 51, 56 (conceding that AEDPA 16 habeas standards apply). 17 28 U.S.C. § 2254(d) sets forth the standard of review under AEDPA: 18 An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim – 19 20 (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or 21 22 (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 23 24 25 26 4 On March 28, 2011, this court denied Williams’s motion for an evidentiary hearing in relation to his petition. ECF No. 187. 5 1 2 28 U.S.C. § 2254(d). A decision of a state court is “contrary to” clearly established federal law if the state court 3 arrives at a conclusion opposite that reached by the Supreme Court on a question of law or if the 4 state court decides a case differently than the Supreme Court has on a set of materially 5 indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405–06 (2000). An “unreasonable 6 application” occurs when “a state-court decision unreasonably applies the law of [the Supreme 7 Court] to the facts of a prisoner’s case.” Id. at 409. “[A] federal habeas court may not “issue the 8 writ simply because that court concludes in its independent judgment that the relevant state-court 9 decision applied clearly established federal law erroneously or incorrectly.” Id. at 411. 10 The Supreme Court has explained that “[a] federal court’s collateral review of a state-court 11 decision must be consistent with the respect due state courts in our federal system.” Miller–El v. 12 Cockrell, 537 U.S. 322, 340 (2003). The “AEDPA thus imposes a ‘highly deferential standard for 13 evaluating state-court rulings,’ and ‘demands that state-court decisions be given the benefit of the 14 doubt.’” Renico v. Lett, 130 S.Ct. 1855, 1862 (2010) (quoting Lindh v. Murphy, 521 U.S. 320, 333, 15 n. 7 (1997); Woodford v. Viscotti, 537 U.S. 19, 24 (2002) (per curiam)). “A state court’s 16 determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists 17 could disagree’ on the correctness of the state court's decision.” Harrington v. Richter, 131 S.Ct. 18 770, 786 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court 19 has emphasized “that even a strong case for relief does not mean the state court’s contrary 20 conclusion was unreasonable.” Id. (citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003)); see also 21 Cullen v. Pinholster, 131 S.Ct.1388, 1398 (2011) (describing the AEDPA standard as “a difficult to 22 meet and highly deferential standard for evaluating state-court rulings, which demands that 23 state-court decisions be given the benefit of the doubt”) (internal quotation marks and citations 24 omitted). 25 “[R]eview under § 2254(d)(1) is limited to the record that was before the state court that 26 6 1 adjudicated the claim on the merits.” Cullen, 131 S.Ct. at 1398. In Cullen, the Court reasoned that 2 the “backward-looking language” present in § 2254(d)(1) “requires an examination of the state-court 3 decision at the time it was made,” and, therefore, the record under review must be “limited to the 4 record in existence at that same time i.e., the record before the state court.” Id. 5 For any habeas claim that has not been adjudicated on the merits by the state court, the 6 federal court reviews the claim de novo without the deference usually accorded state courts under 28 7 U.S.C. § 2254(d)(1). Chaker v. Crogan, 428 F.3d 1215, 1221 (9th Cir. 2005); Pirtle v. Morgan, 313 8 F.3d 1160, 1167 (9th Cir. 2002). See also James v. Schriro, 659 F.3d 855, 876 (9th Cir. 2011) (noting 9 that federal court review is de novo where a state court does not reach the merits, but instead denies 10 relief based on a procedural bar later held inadequate to foreclose federal habeas review). In such 11 instances, however, the provisions of 28 U.S.C. § 2254(e) still apply. Cullen,131 S.Ct at 1401 12 (“Section 2254(e)(2) continues to have force where § 2254(d)(1) does not bar federal habeas 13 relief.”); Pirtle, 313 F.3d at 1167-68 (stating that state court findings of fact are presumed correct 14 under § 2254(e)(1) even if legal review is de novo). 15 Lastly, the Court in Lockyer rejected a Ninth Circuit mandate for habeas courts to review 16 habeas claims by conducting a de novo review prior to applying the “contrary to or unreasonable 17 application of” limitations of 28 U.S.C. § 2254(d)(1). Lockyer, 538 U.S. at 71. In doing so, 18 however, the Court did not preclude such an approach. “AEDPA does not require a federal habeas 19 court to adopt any one methodology in deciding the only question that matters under § 2254(d)(1) – 20 whether a state court decision is contrary to, or involved an unreasonable application of, clearly 21 established Federal law.” Id. 22 III. ANALYSIS OF CLAIMS 23 Claim One(A) 24 In Claim One(A), Williams claims that he received ineffective assistance of counsel because 25 his counsel failed to have him examined by a competent neuropsychologist prior to trial. According 26 7 1 to Williams, such an examination would have revealed that, as a result of neurological impairments, 2 he “is likely to suffer from increased impulsivity, problems with judgment, poor overall problem 3 solving abilities, and difficulty incorporating important facts into his decision-making process.” 4 ECF No. 135, p. 27. Williams contends that effective counsel would have presented this information 5 to the sentencing panel. He further alleges that his impairments made him more likely to follow 6 counsel’s advice to plead guilty and also affected his ability to understand the consequences of 7 entering a guilty plea. 8 9 In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court propounded a two prong test for analysis of claims of ineffective assistance of counsel: a petitioner claiming 10 ineffective assistance of counsel must demonstrate (1) that the defense attorney’s representation 11 “fell below an objective standard of reasonableness,” and (2) that the attorney’s deficient 12 performance prejudiced the defendant such that “there is a reasonable probability that, but for 13 counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 14 466 U.S. at 688, 694. To overcome the strong presumption that counsel has acted competently (id. at 15 690), a defendant must show that counsel failed to act “reasonabl[y] considering all the 16 circumstances.” Id. at 688. If the petitioner makes an insufficient showing as to either one of the 17 two Strickland components, the reviewing court need not address the other component. Id. at 697. 18 Williams presented this claim to the Nevada courts in his final state post-conviction 19 proceeding. As noted above, the Nevada Supreme Court concluded that the claims presented in that 20 proceeding were untimely. In denying en banc reconsideration, however, the court addressed the 21 merits of Williams’s claim that counsel was ineffective in failing to present brain damage evidence. 22 ECF No. 136-4, p. 513-18. The court was “not persuaded that even assuming trial counsel had 23 discovered and presented the brain damage evidence Williams now [relies upon] that it had a 24 reasonable probability of altering the outcome of the penalty hearing.” Id., p. 516. Even though the 25 court was considering the claim as part of its procedural default analysis, the ruling constitutes an 26 8 1 adjudication on the merits for the purposes of § 2254(d). See Early v. Packer, 537 U.S. 3, 8 (2002) 2 (holding that AEDPA deference is afforded where the state court applies a standard that is the 3 functional equivalent of the federal standard). 4 This court is not convinced that the state court rejection of the claim was contrary to, or an 5 unreasonable application of, clearly established federal law, as determined by the Supreme Court, or 6 that the state court’s ruling was based on an unreasonable determination of the facts in light of the 7 evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d). Williams argues that the 8 state court erred by discounting the weight of Williams proffered evidence5 without conducting an 9 evidentiary hearing. Even accepted at face value, however, the findings and opinions of Drs. 10 Schmidt and DePry would have added, at most, only marginal benefit to Williams’s mitigation case. 11 Counsel presented substantial mitigation evidence on Williams’s behalf at the penalty 12 hearing. ECF No. 173-7, p. 42-51; ECF No. 173-8, p. 1-51; ECF No. 173-9, p. 1-51; ECF No. 173- 13 10, p. 1-46. Not counting Williams himself, she called ten witnesses to the stand and elicited 14 extensive testimony about the adverse conditions Williams faced growing up in violent and crime- 15 ridden communities in southern California. The sentencing panel was informed that his mother died 16 of cancer when he was nine years old and that his biological father was not involved in his 17 upbringing. He spent the rest of his childhood living with relatives, mostly with his mother’s cousin 18 in the years following his mother’s death and later with his maternal grandmother. He was described 19 by various witnesses as a very thoughtful, dutiful, and dependable boy, who was committed to 20 protecting and taking care of his younger sisters. According to testimony, Williams was hit very 21 hard not only by the loss of his mother, but also his maternal grandmother and an uncle, both of 22 whom died when he was seventeen years old. 23 Counsel called several witnesses who testified about Williams’s redeeming qualities and the 24 25 26 5 The evidence consists of a neuropsychological assessment by David L. Schmidt, Ph.D., and psychiatric evaluation by Dennis L. DePry, D.O., both conducted in 1999. ECF No. 136-3, p. 104-129. 9 1 contributions he could make to his family and other prisoners if his life were to be spared. His 2 fiancée expressed her intent to marry him even though he had plead guilty to murder. His great 3 uncle stated that he had employed Williams for four years and described him as reliable, respectful, 4 and the best worker he had ever seen. A friend with whom Williams attended college testified about 5 Williams’s efforts to improve himself and desire to work his way out of the rough neighborhood in 6 which they lived. A former neighbor detailed how Williams, without being asked, came over to 7 work around her house and helped her take care of her children. 8 9 When Williams testified, he recounted his version of the murder, which, according to him, was the result of panic brought about by unexpectedly confronting someone when he assumed no 10 one was home. Counsel also elicited testimony about Williams’s background. After describing his 11 family and educational background, Williams indicated that his brief stint at community college 12 ended when he was shot in a drive-by shooting that resulted in three surgeries. He then left Los 13 Angeles for San Diego, where he worked for a short time, first mixing cement, then cleaning up 14 parks. Returning to Los Angeles but not wanting to stay, Williams used connections he had 15 established while boxing in the Job Corps program a few years earlier to relocate to Reno, where he 16 lived with a boxing manager and worked as a maintenance person in the subdivision where he 17 committed the Carlson murder. 18 The reports of Schmidt and DePry contain some information that may have added some 19 mitigatory weight to Williams’s case, but not a significant amount. Based on Williams’s 20 performance on neuropsycological tests, Dr. Schmidt opined that Williams had suffered sufficient 21 brain damage to cause a change of functioning that included the attributes mentioned above – i.e., 22 increased impulsivity, problems with judgment, poor overall problem solving abilities, and difficulty 23 incorporating important facts into his decision-making process. Dr. DePry noted that, had he been 24 asked to testify at Williams’s penalty hearing, he would have testified “about the effects of the 25 patient’s turbulent, chaotic and abusive upbringing as it relates to his behavior and personality.” 26 10 1 The proffered reports are not only not particularly compelling, Dr. Schmidt’s report contains 2 information that may have actually hurt Williams’s chances for a more lenient sentence. 3 Specifically, Dr. Schmidt noted that Williams’s personality profile was indicative of individuals who 4 are “angry, argumentative, and resentful of any demands being placed upon them” and who may 5 “become hostile and angry [when] their expectations are not met.” ECF No. 136-3, p. 110. In any 6 case, there is a “reasonable argument” that the outcome of Williams’s penalty proceeding would not 7 likely have been different had counsel investigated and presented the evidence of brain damage upon 8 which Williams now relies. See Richter, 131 S.Ct. at 788. Thus, Williams is not entitled to relief 9 because he cannot “show that the state court’s ruling on the claim being presented in federal court 10 was so lacking in justification that there was an error well understood and comprehended in existing 11 law beyond any possibility for fairminded disagreement.” Id. at 786–787. 12 With regard to Williams’s claim that his mental impairments impacted the voluntariness of 13 his guilty plea, the proffered evidence falls well short of showing that Williams is entitled to habeas 14 relief based on such a theory. More specifically, there has been no showing that Williams’s alleged 15 mental impairments prevented him from knowingly, voluntarily, and intelligently entering a guilty 16 plea with complete knowledge of the relevant circumstances and likely consequences. Brady v. 17 United States, 397 U.S. 742, 747-48 and n. 4 (1970). 18 19 Claim One(B) In Claim One(B), Williams claims that he received ineffective assistance of counsel because 20 his counsel failed to conduct adequate guilt phase research and investigation. Williams identifies 21 several ways in which he claims counsel was deficient in this respect: (1) she failed to utilize the 22 services of a competent investigator; (2) she failed to obtain adequate discovery from the prosecutor, 23 including information suggesting that Charles Wilkinson played a greater role in the homicide; (3) 24 she failed to research and accurately advise Williams as to constitutional issues regarding the 25 admissibility of the statements of his non-testifying co-defendants; and (4) she failed to use available 26 11 1 information, including Williams’s own inconsistent statements, to refute Williams’s testimony that 2 he had acted alone. This claim was rejected on procedural grounds in state court. Thus, it is subject 3 to de novo review by this court. 4 Much of the evidence Williams relies upon to substantiate this claim was not presented to 5 the state court until he litigated his final state petition, which was rejected by the Nevada Supreme 6 Court on adequate and independent procedural grounds. As explained in this court’s order denying 7 Williams’s motion for an evidentiary hearing (ECF No.187), 28 U.S.C. § 2254(e)(2) bars this court 8 from considering such evidence in deciding the merit of Williams’s claims. Moreover, Williams has 9 proffered no evidence at all to support some of his allegations, such as his claim that part of the 10 reason he plead guilty to the murder is that counsel inaccurately advised him that his co-defendants’ 11 statements could be used against him at trial. 12 At the state court evidentiary hearing held on November 2, 1984, Williams’s trial counsel, 13 Shelly O’Neill, testified that, in the months leading up to trial, she had prepared a defense that 14 conceded Williams’s participation in the burglary, but argued that a co-defendant was the actual 15 killer. ECF No. 173-13, p. 31. According to her testimony, the decision to plead guilty to the 16 murder came about when, after having difficulty with practice cross-examination, Williams 17 confessed to her that he had killed Carlson and told her that he did not feel that he could hold up 18 under the prosecutor’s cross examination. Id., p. 32. 19 Despite having opportunities at two separate state court evidentiary hearings, Williams did 20 not present any substantial evidence with respect to O’Neill’s efforts, or lack thereof, in preparing a 21 guilt phase defense. In Claim One(B), he relies on a declaration from Robert Howell, an investigator 22 with the public defender’s office assigned to Williams’s case, in attempting to show that O’Neill’s 23 performance was deficient. ECF No. 136-3, p. 500-01. However, that declaration, not prepared until 24 1999, is subject to the aforementioned bar imposed by § 2254(e)(2). 25 In addition, the decision to plead guilty to the murder and focus on the penalty phase was 26 12 1 reasonable given the overwhelming evidence of Williams’s guilt (including his own confession), 2 together with a lack of evidence showing that one of co-defendants committed the killing. See 3 Florida v. Nixon, 543 U.S. 175, 191-92 (2004) (holding that counsel's strategic decision to concede 4 guilt and focus on the penalty phase was not ineffective assistance of counsel under the Strickland 5 standard notwithstanding the absence of defendant's explicit consent). Claim One(B) is denied. 6 7 Claim One(F) In Claim One(F), Williams claims that he received ineffective assistance of counsel because 8 counsel failed to present available mitigation evidence during the penalty phase of his trial. 9 Williams alleges that his upbringing was far more bleak than what counsel presented at his penalty 10 hearing and, in support of this claim, Williams sets out a very detailed social history, based 11 primarily on declarations of relatives and acquaintances, along with records from the juvenile court 12 in Los Angeles County. That history includes the following information. 13 Prior to his mother’s death when he was nine years old, Williams witnessed her being beaten 14 by his step-father. Williams was also physically abused by both his step-father and mother. 15 Beginning at age eight, Williams witnessed his mother’s slow and agonizing death from cancer. 16 When she died, Williams, then nine years old, was forced into the role of caretaker for his younger 17 sisters. In the ensuing years, Williams and his sisters were passed from relative to relative, 18 witnessing or experiencing neglect, alcohol abuse, physical and emotional abuse, and molestation. 19 In early adolescence, Williams began consuming alcohol, sniffing glue, and smoking marijuana on a 20 regular basis. By age thirteen, he was an alcoholic, and, at fifteen, he began using PCP. Drugs and 21 gangs pervaded the neighborhoods of Compton and Watts, where Williams resided throughout his 22 youth. Homicides were a regular occurrence and, in addition to being the victim of a drive-by 23 shooting, Williams was once shot in the leg at a high school dance. 24 25 Williams presented this claim to the state court in the amended petition for post-conviction relief that he filed on July 16, 1993. ECF No. 173-20, p. 8-41. As noted above, the state district 26 13 1 court held an evidentiary hearing in that case. ECF No. 173-21, p. 1-49; 173-22, p. 1-61. O’Neill 2 and Williams testified at the hearing, but the testimony elicited by Williams’s counsel focused 3 almost entirely on his conflict of interest claim (see discussion of Claim Four, below) to the 4 exclusion of all other claims. Id. Even so, the State appeared to stipulate to allowing the state court 5 to consider exhibits submitted with state petition (including several of the declarations cited in 6 support of Claim One(F)). ECF 173-21, p. 9-10. 7 The state district court dismissed the claim on grounds that Williams’s ineffective assistance 8 of counsel claims had already been decided by the Nevada Supreme Court and that, as a result, the 9 court was bound by the law of the case doctrine. ECF No. 173-23, p. 1-9. The court also found, 10 however, that the claim was “directly contradicted by the evidence received by [the court].” Id., p. 9. 11 On appeal, the Nevada Supreme Court upheld the lower court’s law of the case determination, and 12 also held that, to the extent he was raising “new and different grounds for relief,” Williams had not 13 shown that failure to raise such grounds in an earlier petition should be excused due to cause and 14 prejudice or his “actual innocence.” Id., p. 10-14. Thus, because the claim was rejected on 15 procedural grounds in state court, it is subject to de novo review by this court. 16 As recounted above in relation to Claim One(A), much of the social history set forth in 17 support of this claim was, indeed, presented to the three-judge panel. Of the fifteen declarations 18 from relatives and acquaintances that Williams cites, six are from witnesses O’Neill called to testify 19 at the penalty hearing. And, strangely, some of the declarants are the very people other declarants 20 accuse of mistreating or abusing Williams and his sisters. 21 By selectively compiling allegations from the various declarants, Williams has presented a 22 social history on paper that contains some dramatic circumstances not elicited by O’Neill at 23 Williams’s penalty hearing. However, attempting to present that history before the sentencing panel, 24 with witnesses giving conflicting testimony and being subject to cross-examination, would have 25 painted a murky and confusing picture of Williams’s childhood. In addition, presenting additional 26 14 1 evidence regarding Williams’s substance abuse would not have necessarily added weight to his case 2 for mitigation. See Cullen, 131 S.Ct. at 1410 (noting that evidence of serious substance abuse is “by 3 no means clearly mitigating”). 4 O’Neill’s mitigation case adhered to a coherent theme – that being to portray Williams as a 5 thoughtful and caring young man who was forced to overcome a series of adverse family and social 6 circumstances from a very early age and worked hard to try to improve his situation. It is also 7 apparent from the record that O’Neill arrived at this strategy after conducting a reasonable 8 investigation into Williams’s family and social background. In sum, Williams has not overcome the 9 presumption of competence mandated by Strickland. See Cullen, 131 S.Ct. at 1406-07 (noting that 10 Strickland “rejected the notion that the same investigation will be required in every case” and 11 requires the habeas court to strongly presume that counsel exercised reasonable judgment in making 12 all significant decisions). And for the reasons discussed above, there is not reasonable probability 13 that the additional evidence Williams presented to the state court in post-conviction proceedings 14 would have resulted in a better outcome at sentencing. Claim One(F) is denied. 15 Claim One(G) 16 In Claim One(G), Williams claims that he received ineffective assistance of counsel because 17 counsel failed to obtain a defense expert to rebut the alleged aggravating circumstance of torture. In 18 support of this claim, Williams alleges that counsel never met with Dr. Roger Ritzlin, the expert 19 used by the State at the penalty hearing to establish that Williams tortured Carlson. According to 20 Williams, a “competent expert” could have demonstrated that Carlson’s wounds “were not 21 consistent with torture wounds.” ECF No. 135, p. 54. 22 Williams presented this claim to the state court in the amended petition for post-conviction 23 relief that he filed on July 16, 1993. ECF No. 173-20, p. 8-41. For the exact same reasons discussed 24 above in relation to Claim One(F), this claims is subject to de novo review by this court. 25 In support of this claim, Williams submits a report from Donald Reay, M.D., a forensic 26 15 1 pathologist. ECF No. 136-3, p. 88-103. In the report, Dr. Reay disagrees with Dr. Ritzlin’s 2 conclusion that the numerous superficial knife wounds found on Carlson’s body were evidence of 3 torture. Id. Here again, however, the report was not prepared until 1999 and is, therefore, beyond 4 the scope of this court’s review under § 2254(e)(2). Having not shown that a defense expert would 5 have been able to effectively rebut the State’s evidence in support of the torture aggravator, Williams 6 has not met the prejudice prong of the Strickland standard. See Bible v. Ryan, 571 F.3d 860, 871 (9th 7 Cir. 2009) (holding that speculation as to evidence that could have been presented is insufficient to 8 show Strickland prejudice). 9 As for the allegation that counsel had not met with Ritzlin prior to trial, O’Neill’s cross 10 examination of the expert was conducted in an effective manner. ECF No. 173-7 p. 25-42. She 11 undermined Ritzlin’s testimony that the wounds inflicted on Carlson were similar to those he had 12 observed in examining victims of gang-related torture killings in southern California. She was able 13 to establish that, unlike Carlson, the victims in all of those cases had been bound. Id., p. 35. In 14 addition, Ritzlin admitted, under cross-examination, that he did not know whether the gang killings 15 he testified about were committed by a single individual or a group. Id. He also conceded that some 16 of Carlson’s wounds were consistent with defensive wounds and that the wounds he identified as 17 evidence of torture could also be evidence of “severe struggle.” Id, p. 36-37. Even if O’Neill 18 neglected to interview Dr. Ritzlin prior to trial, Williams has not shown that her cross examination 19 of him would have been more effective had she done so. Thus, the alleged omission did not give rise 20 to the type of prejudice contemplated by Strickland. Claim One(G) is denied. 21 Claim Two 22 In Claim Two, Williams claims that his conviction and death sentence violate his 23 constitutional rights because the Washoe County Public Defender’s Office failed to provide him 24 with resources necessary for his defense. He alleges that the office was not adequately staffed to 25 handle its caseload, both in terms of the number and the experience of attorneys working in the 26 16 1 office. He further alleges that O’Neill was overworked and that she did not utilize the services of the 2 investigator assigned to the case or, for that matter, any other investigator. 3 4 5 6 In United States v. Cronic, 466 U.S. 648 (1984), the Court recognized that prejudice is, in most cases, an essential part of a claim of ineffective assistance of counsel: [T]he right to the effective assistance of counsel is recognized not for its own sake, but because of the effect it has on the ability of the accused to receive a fair trial. Absent some effect of challenged conduct on the reliability of the trial process, the Sixth Amendment guarantee is generally not implicated. 7 8 Cronic, 466 U.S. at 658. The Cronic Court went on to hold, however, that there are “circumstances 9 that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is 10 unjustified.” Id. Examples of such circumstances are complete denial of counsel at a critical stage 11 of trial or failure on the part of counsel to subject the prosecution's case to meaningful adversarial 12 testing. Id. at 659. “Circumstances of that magnitude may be present on some occasions when 13 although counsel is available to assist the accused during trial, the likelihood that any lawyer, even a 14 fully competent one, could provide effective assistance is so small that a presumption of prejudice is 15 appropriate without inquiry into the actual conduct of the trial.” Id. at 659–60. 16 In this case, Williams's allegations regarding lack of resources provided for his defense by the 17 Washoe County Public Defender’s office do not show that his defense was so undermined that there 18 should be a presumption of prejudice, under Cronic, without inquiry into the actual conduct of the 19 trial. As such, the court determines that Claim Two does not set forth a viable claim that the alleged 20 lack of resources was a violation of Williams's right to effective assistance of counsel. Because it 21 does not independently state a viable claim for habeas corpus relief, the court will deny Claim Two. 22 23 Claim Four In Claim Four, Williams claims that his constitutional rights were violated because his trial 24 counsel labored under an actual conflict of interest that adversely affected her performance. The 25 claim is premised on allegations that Williams’s trial counsel, O’Neill, established an attorney-client 26 17 1 relationship with Wilkinson, Williams’s separately charged co-defendant, prior to undertaking 2 representation of Williams. 3 As factual support for this claim, Williams relies, primarily, on testimony given by Williams 4 and O’Neill at the state post-conviction evidentiary hearing held on December 1, 1995. ECF No. 5 136-4, p. 104-212. At that hearing, Williams testified that, during their initial meeting at the Washoe 6 County jail, O’Neill told him that she had already spoken with Wilkinson and that she had yet to 7 decide whom she was going to represent. Id., p. 174. According to her testimony, O’Neill had no 8 memory of meeting with Wilkinson, but also noted that her recollection was “hazy,” having “not 9 seen the file in probably 12 or 13 years.” Id., p.120. 10 “To establish a violation of the right to conflict-free counsel, the petitioner must show either 11 that (1) in spite of an objection, the trial court failed to allow him the ‘opportunity to show that 12 potential conflicts impermissibly imperil[ed] his right to a fair trial;’ or (2) that an actual conflict of 13 interest existed.” Alberni v. McDaniel, 458 F.3d 860, 869-70 (9th Cir. 2006) (citing Cuyler v. 14 Sullivan, 446 U.S. 335, 348 (1980)). Because he never raised an objection based on the alleged 15 conflict in the trial court, Williams must show that an actual conflict of interest existed. 16 That is, he must demonstrate that O’Neill’s performance was adversely affected by the 17 alleged conflict. Mickens v. Taylor, 535 U.S. 162, 171 (2002) ("[A]n actual conflict of interest 18 [means] precisely a conflict that affected counsel's performance--as opposed to a mere theoretical 19 division of loyalties."). To meet this standard, he must show “that the attorney's behavior seems to 20 have been influenced by the conflict,” which, though not a showing of actual prejudice, “remains a 21 substantial hurdle.” Lockhart v. Terhune, 250 F.3d 1223, 1231 (9th Cir. 2001) (quoted citations 22 omitted). 23 Here, not only are Williams’s allegations and evidence lacking in substance, he has also 24 failed to link the purported conflict to a particular defect in counsel’s performance. See, e.g., Lewis 25 v. Mayle, 391 F.3d 989, 998-99 (9th Cir. 2004) (considering link between the conflict and counsel's 26 18 1 omissions in cross-examination). There is little more than Williams’s self-serving testimony to 2 support a finding that the jailhouse meeting between O’Neill and Wilkinson ever took place. Even if 3 it did, there is virtually no support in the record for Williams’s allegation that the O’Neill’s 4 “concurrent representation” caused her to not use information at her disposal “showing that 5 Wilkinson was the actual perpetrator of the homicide.” ECF No. 182, p. 44. 6 7 Having not made the showing required by Cuyler and Mickens, Williams is not entitled to relief under Claim Four. 8 Claim Eight 9 In Claim Eight, Williams claims that his conviction and death sentence are unconstitutional 10 due to the State’s failure to disclose exculpatory and impeachment evidence. According to Williams, 11 such evidence consisted of the following: 12 13 14 15 16 17 . . . “a statement of Mr. Williams’ to a reporter in which Mr. Williams denied committing the murder, (Ex. 151); a July 27, 1982 statement of Harvey Young, which refutes Mr. Wilkinson’s alibi and magnifies Wilkinson’s level of involvement in the homicide, (Ex. 116 attached hereto); a criminalistics report dated July 7, 1982 which reveals that bags on the victim’s hands showed presence of animal hair and light-colored human hair (Ex. 117 attached hereto); a July 30, 1982, report of co-defendant Charles Wilkinson’s polygraph results, reflecting a determination that Wilkinson was “deceptive” as to his alleged lack of knowledge about the details of the homicide (attached hereto as Ex. 118); and a report of a March 2, 1983 interview with DeLeon Fair, which refers to a post-homicide discussion between Young and his girlfriend, Juliana Rogers, as to whether they could obtain secret witness money (attached hereto as Ex.119).” 18 ECF No. 135, p. 86 (referenced exhibits located at ECF No. 136). Williams further alleges that the 19 State “also failed to disclose material, exculpatory information evidence pertaining to Mr. Williams’ 20 juvenile adjudications, and to his assertion of his right to counsel.” Id. 21 The prosecution’s suppression of evidence favorable to an accused violates due process 22 where the evidence is material to either guilt or punishment, irrespective of the good faith of the 23 prosecutor. Brady v. Maryland, 373 U.S. 83, 87 (1963). There are three components of a Brady 24 violation: (1) the evidence at issue must be favorable to the accused either because it is exculpatory 25 or because it is impeaching; (2) the evidence must have been suppressed by the State either willfully 26 19 1 or inadvertently; and (3) prejudice must have ensued. Banks v. Dretke, 540 U.S. 668, 691 (2004); 2 Strickler v. Greene, 527 U.S. 263, 281-82 (1999). 3 “Such evidence is material ‘if there is a reasonable probability that, had the evidence been 4 disclosed to the defense, the result of the proceeding would have been different.’” Strickler v. 5 Greene, 527 U.S. at 280 (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)). “[T]here is 6 never a real ‘Brady violation’ unless the nondisclosure was so serious that there is a reasonable 7 probability that the suppressed evidence would have produced a different verdict.” Strickler v. 8 Greene, 527 U.S. at 281. A “reasonable probability” is a probability sufficient to undermine 9 confidence in the outcome. United States v. Bagley, 473 U.S. at 681-82; see also Kyles v. Whitley, 10 514 U.S. 419, 434 (1995) (“The question is not whether the defendant would more likely than not 11 have received a different verdict with the evidence, but whether in its absence he received a fair trial, 12 understood as a trial resulting in a verdict worthy of confidence.”). 13 The Nevada Supreme Court considered the federal law merits of this claim in determining 14 whether Nev. Rev. Stat. § 34.726 barred his state petition. See ECF No. 145-2, p. 11. The state 15 supreme court stated that it had reviewed Williams’s argument and proffered evidence and 16 concluded that he “failed to demonstrate any Brady violation.” Id. As with Claim One(A), this court 17 must apply § 2254(d) deference even though the state court was considering the claim as part of its 18 procedural default analysis. 19 To show that the evidence identified above was withheld, Williams offers a 1999 declaration 20 from his then-habeas counsel, Rebecca Blaskey, stating that she had compared “what purport to be 21 the original trial files of the attorneys for Mr. Williams and his two-separately charged co- 22 defendants” and found that certain police reports and witness statements in the co-defendants’ files 23 did not appear in Williams’s file. ECF No. 136-4, p. 213-15. Even accepting Blaskey’s declaration 24 as true and accurate, her comparison of files conducted more than fifteen years after Williams’s trial 25 is not particularly strong showing with respect to the suppression element. Cf. Banks, 540 U.S. at 26 20 1 693 (finding suppression of evidence for Brady purposes where the State persisted in hiding 2 witness's informant status at trial and in state habeas proceedings); Strickler, 527 U.S. at 275 3 (confining Brady analysis to exhibits that prosecutor admittedly failed to disclose). 4 Williams also falls short of showing that the evidence was material to either guilt or 5 punishment. Williams argues that, without the withheld evidence, the sentencing panel was deprived 6 of “an accurate picture of his culpability.”6 ECF No. 135, p. 87; ECF No. 182, p. 46. As 7 respondents point out, however, Williams was always aware of his level of culpability relative to that 8 of his co-defendants. According to his own testimony before the sentencing panel, he performed the 9 actual killing by himself. Cf. Brady, 373 U.S. at 84 (“Brady took the stand and admitted his 10 participation in the crime, but he claimed that [his accomplice] did the actual killing.”). Thus, the 11 evidence that Williams points to as elevating the culpability of his co-defendants (which is 12 questionable, at best) would have done little to improve his chances before the sentencing panel. 13 In addition, the evidence relating to his juvenile adjudications (ECF No. 136-4, p. 419-49) would not 14 have added substantial weight to his case for mitigation; and, the evidence that supposedly shows 15 that he asserted his right to counsel (ECF No.136-4, p. 1-2) would have added no weight whatsoever. 16 In sum, there is not a reasonable probability that, but for the State’s failure to disclose the 17 evidence at issue, the results of the Williams’s sentencing proceeding would have been different. 18 Moreover, the state court’s rejection of Williams’s Brady claim was not “so lacking in justification 19 that there was an error well understood and comprehended in existing law beyond any possibility for 20 6 21 22 23 24 In countering the State’s argument that his Brady claim was waived under Tollett v. Henderson, 411 U.S. 258 (1973), Williams emphasizes that the focus of his claim is the sentencing proceeding, not the guilty plea. He further argues that, even if that were not the case, Sanchez v. U.S., 50 F.3d 1448 (9th Cir. 1995), allows a defendant to challenge his guilty plea based on an alleged Brady violation. Under Sanchez, Williams would need to establish “a reasonable probability that but for the failure to disclose the Brady material, [he] would have refused to plead and would have gone to trial.” 50 F.3d at 1454. Williams does not claim that he can make such a showing. 25 26 21 1 fairminded disagreement.” Richter, 131 S.Ct. at 786-87. Accordingly, Claim Eight is denied. 2 3 Claim Sixteen In Claim Sixteen, Williams claims that his death sentence violates his constitutional rights 4 because it is based on an invalid aggravating circumstance, that being that the homicide was 5 committed to avoid lawful arrest. He argues that there was insufficient evidence to support the 6 finding. He further argues that the statutory definition of the factor is impermissibly vague and 7 overbroad and that the factor is unconstitutional “as applied.” 8 9 According to Williams, the aggravating factor, as defined at Nev. Rev. Stat. § 200.033(5), lacks rational standards to be applied by prosecutors and sentencing bodies and fails to give adequate 10 notice to defendants. He also contends that, as applied by the Nevada courts, the factor is 11 unconstitutional because its scope has been expanded to include homicides occurring in the absence 12 of an identifiable “lawful arrest” and does not rationally narrow the class of homicides subject to the 13 death penalty. 14 In Godfrey v. Georgia, the Supreme Court considered an aggravating circumstance 15 instruction that allowed for the death penalty if the jury found that the murder was “‘outrageously or 16 wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated 17 battery to the victim.’” 446 U.S. 420, 422 (1980) (quoting Georgia statute). The Court held that the 18 instruction was unconstitutional as applied in that case because it resulted in “standardless and 19 unchanneled imposition of death sentences in the uncontrolled discretion of a basically uninstructed 20 jury.” Id. at 429. The Court further held that the Georgia Supreme Court failed to cure the defect 21 because it did not apply a constitutional construction of the statutory language in affirming the death 22 sentences on appeal. Id. at 432-33. 23 As explained in Tuilaepa v. California, the Supreme Court has found very few aggravating 24 factors to be impermissibly vague and all of those have been similar to each other. 512 U.S. 967, 25 973-74 (1994) (citing to Godfrey and Maynard v. Cartwright, 486 U.S. 356, 361-364 (1988) as 26 22 1 examples, the latter of which addressed an aggravating circumstance that asked whether the murder 2 was “especially heinous, atrocious, or cruel”).7 An aggravating factor withstands a constitutional 3 challenge if it has some “common sense core of meaning . . . that criminal juries should be capable 4 of understanding.” Id. at 973 (quoting Jurek v. Texas, 428 U.S. 262, 279 (1976)). However, to be 5 constitutional, an aggravating circumstance must “not apply to every defendant convicted of a 6 murder; it must apply only to a subclass of defendants convicted of murder.” Tuilaepa, 512 U.S. at 7 972; see also Arave v. Creech, 507 U.S. 463, 474 (1993) (“If the sentencer fairly could conclude that 8 an aggravating circumstance applies to every defendant eligible for the death penalty, the 9 circumstance is constitutionally infirm.”). 10 Here, the sentencing panel was called upon to determine whether “the murder was committed 11 by the defendant for the purpose of avoiding and preventing his lawful arrest for the burglary of the 12 victim’s home.” Document No. 14, Exhibit I-C. The “core meaning” of the factor at issue is readily 13 understandable from this language. In addition, the statutory language defining the circumstance is 14 specific enough to guide the sentencing body and avoid arbitrary and capricious imposition of the 15 death and sufficiently narrows the class to defendants to which it applies. See Wainwright v. 16 Lockhart 80 F.3d 1226, 1231 (8th Cir. 1996) (upholding the validity of an Arkansas statute that the 17 killing was committed for the purpose of avoiding or preventing an arrest or effecting an escape from 18 custody); Davis v. Executive Director of Dept. of Corrections, 100 F.3d 750, 769 (10th Cir. 1996) 19 (holding that Colorado's “avoiding or preventing lawful arrest or prosecution” sufficiently narrows 20 the class of persons eligible for the death penalty “by putting the focus on the purpose of the 21 murder.”). 22 23 24 25 26 7 Though Tuilaeapa was decided 18 years ago, this state of affairs still applies today. In the rare instances since Tuilaeapa where the Court has found an aggravator invalid on vagueness grounds, the aggravator has consisted of pejorative adjectives that generally apply to all murders. See, e.g., Barber v. Tennessee, 513 U.S. 1184 (1995) (mem.) (denying certiorari on other grounds, but noting “wicked or morally corrupt” as an aggravator is “plainly impermissible” because such a state of mind is characteristic of every murder). 23 1 Williams is also incorrect in arguing that the Nevada courts have not applied the aggravating 2 circumstance in a constitutional manner. In both the cases Williams cites – Cavanaugh v. State, 729 3 P.2d 481, 486 (Nev. 1986) and Evans v. State, 926 P.2d 265, 280-81 (Nev. 1996), an antecedent 4 crime occurred, and the murderer killed the victim to prevent the victim's identification of the 5 murderer for that crime. Applying the factor in this manner does not run afoul of the Constitution. 6 Davis 100 F.3d at 770; accord Wainwright, 80 F.3d at 1231 (holding that the aggravator was 7 properly applied to a murder which was committed in the course of a robbery, in order to prevent the 8 murderer's identification by the victim). As discussed below, that is precisely how the circumstance 9 was applied in this case. 10 The standard used by the federal habeas court to determine whether a state court finding of an 11 aggravating circumstance is supported by sufficient evidence is the same “rational factfinder” 12 standard established in Jackson v. Virginia, 443 U.S. 307 (1979), to test whether sufficient evidence 13 supports a state conviction. Lewis v. Jeffers, 497 U.S. 764, 781 (1990). Under that standard, the 14 court inquires as to “whether, after viewing the evidence in the light most favorable to the 15 prosecution, any rational trier of fact could have found the essential elements of the crime beyond a 16 reasonable doubt.” Jackson, 443 U.S. at 319 (citation omitted). 17 Here, Williams testified at this penalty hearing that he thought no one was home when he 18 entered the Carlson’s residence and that he would not have committed the burglary if he thought 19 there was. ECF No. 173-8, p. 39-40. According to his testimony, he obtained the knife used to 20 murder Carlson after noticing a purse on the kitchen counter. Id., p. 44-45. He further testified that, 21 upon encountering the victim in the bedroom, she said, “Oh my God, you’re the kid from down the 22 street.” Id., p. 46; ECF No. 173-9, p. 25-26. He said that he then saw her reach for a drawer next to 23 the bed, at which point, he “cut her off” and stabbed her. ECF No. 173-9, p. 45; ECF No. 173-10, p. 24 25-27. 25 Viewing this evidence in a light most favorable to the prosecution, a rational factfinder could 26 24 1 have found beyond a reasonable doubt that Williams committed the murder to avoid or prevent a 2 lawful arrest. Thus, Williams is not entitled to relief under the Jackson standard. Claim Sixteen is 3 denied. 4 IV. IMPACT OF MARTINEZ 5 On May 5, 2012, this court entered an order permitting each party to file a supplemental brief 6 addressing the impact of Martinez v. Ryan, 132 S. Ct. 1309 (2012), on this case. ECF No. 190. In 7 Martinez, the Court held that, in collateral proceedings that provide the first occasion to raise a claim 8 of ineffective assistance at trial, ineffective assistance of post-conviction counsel in that proceeding 9 may establish cause for a prisoner's procedural default of such a claim. Martinez, 132 S. Ct. at 1315. 10 The Court in Martinez stressed that its holding was a “narrow exception” to the rule in 11 Coleman v. Thompson, 501 U.S. 722 (1991), that “an attorney's ignorance or inadvertence in a 12 postconviction proceeding does not qualify as cause to excuse a procedural default.” Martinez, 132 13 S.Ct. at 1315. It is clear from the opinion that the exception does not extend beyond ineffective 14 assistance of trial claims. See id. at 1320. Thus, in this case, Martinez would potentially apply to 15 only the sub-claims set forth under Claim One. 16 In asserting procedural defenses to Williams’s claims, however, the respondents also raised 17 lack of timeliness under 28 U.S.C. § 2244(d) with respect to several of those sub-claims, most 18 notably each of the sub-claims that have not been addressed on the merits above – i.e., Claims 19 One(C-E and H-I). ECF No. 145, p. 44-49. In adjudicating respondents’ motion to dismiss, this 20 court agreed that Claim One(C) is time-barred, but, having found Claims One(D, E, H, I, or J) 21 procedurally defaulted, did not determine whether they are also time-barred. ECF No. 165, p. 15-19. 22 For the reasons that follow, the court now concludes that all of the sub-claims in Claim One not 23 addressed on the merits above are, in fact, time-barred under Mayle v. Felix, 545 U.S. 644 (2005).8 24 25 26 8 The court’s order adjudication the respondents’ motion to dismiss includes a discussion of how Mayle applies to this case. See ECF No. 165, p. 15-16. 25 1 In Claim One(D), Williams claims that he received ineffective assistance of counsel because 2 of his trial counsel’s performance during the jury selection phase of the trial. ECF No. 135, p. 31-34. 3 As grounds for the claim, he relies upon several statements counsel made to prospective jurors 4 during the voir dire process. Id. In opposing respondents’ motion to dismiss, Williams argued that 5 this claim related back to Claim Eight in his initial petition. ECF No. 156, p. 46-47. In comparing 6 the two claims, however, the court finds they do not share a common core of operative facts. Thus, 7 the Claim One(D) does not relate back and is untimely. 8 9 In Claim One(E), Williams claims he received ineffective assistance of counsel because his counsel induced him into pleading guilty by representing that she was personal friends with the trial 10 judge, who would not sentence him to death. ECF No. 135, p. 34-35. Williams’s initial petition 11 makes brief reference to counsel’s “prediction of leniency” due to her personal friendship with the 12 judge. Document No. 5, p. 3. That reference, however, is contained in introduction of the petition 13 and is not alleged as an operative fact supporting a substantive claim. As such, Claim One(E) does 14 not relate back and is untimely. 15 In Claim One(H), Williams claims he received ineffective assistance of counsel because his 16 counsel failed to obtain his juvenile records for the purpose of rebutting the prosecutor’s presentation 17 of Williams’s prior record and failed to rebut other evidence of un-adjudicated conduct presented by 18 the State. ECF No. 135, p. 55-56. The juvenile records referred to the in claim are the 19 aforementioned records from the juvenile court in Los Angeles County; and, the un-adjudicated 20 conduct consists of a robbery Williams purportedly committed in Reno in 1982. Id. The claim does 21 not share a common core of operative facts with any claim or claims contained in Williams’s initial 22 petition. Thus, the claim does not relate back and is untimely. 23 In Claim One(I), Williams claims he received ineffective assistance of counsel because his 24 counsel failed to preserve his theory of defense. ECF No. 135, p. 56-57. Specifically, Williams 25 alleges that counsel’s investigator revealed to an attorney who shared office space with co-defendant 26 26 1 Wilkinson’s counsel that Williams’s defense was based on the theory that Wilkinson, not Williams, 2 killed the victim. Id. The claim does not share a common core of operative facts with any claim or 3 claims contained in Williams’s initial petition. Thus, the claim does not relate back and is untimely. 4 In Claim One(J), Williams claims he received ineffective assistance of counsel because his 5 counsel failed to litigate several motions and objections in order to protect his constitutional rights. 6 ECF No. 135, p. 57-58. Williams argues that this claim relates back to Ground One of his initial 7 petition, wherein Williams faulted counsel for failing to raise several enumerated evidentiary 8 challenges. Document No. 5, p. 15-18. Those challenges bear virtually no factual relationship, 9 however, to the motions and objections set forth in Claim One(J). Consequently, Claim One(J) does 10 11 not relate back and is untimely. Because all of the claims to which the Martinez holding could potentially apply are time- 12 barred, the court will not delve into whether the procedural default of the claims may be excused due 13 to ineffective assistance of post-conviction counsel. With his supplemental brief, Williams asks the 14 court to consider whether he is entitled to equitable tolling in light of Holland v. Florida, 130 S.Ct. 15 2549 (2010), which held that a habeas petitioner may be entitled to equitable tolling if he can show 16 that he has been pursuing his rights diligently, and that some extraordinary circumstance stood in his 17 way and prevented timely filing. 130 S.Ct. at 2560. The holding in Holland, however, was already 18 the law in this circuit when this court addressed equitable tolling in the context of deciding 19 respondents’ motion to dismiss. See Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 20 2009). As such, the court declines to revisit the issue. 21 V. CONCLUSION 22 For the reasons set forth above, Williams is not entitled to habeas relief. 23 Certificate of Appealability 24 Because this is a final order adverse to the petitioner, Rule 11 of the Rules Governing Section 25 2254 Cases requires this court to issue or deny a certificate of appealability (COA). Accordingly, the 26 27 1 court has sua sponte evaluated the claims within the petition for suitability for the issuance of a 2 COA. See 28 U.S.C. § 2253(c); Turner v. Calderon, 281 F.3d 851, 864-65 (9th Cir. 2002). Pursuant to 28 U.S.C. § 2253(c)(2), a COA may issue only when the petitioner "has made a 3 4 substantial showing of the denial of a constitutional right." With respect to claims rejected on the 5 merits, a petitioner "must demonstrate that reasonable jurists would find the district court's 6 assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 7 (2000) (citing Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)). For procedural rulings, a COA 8 will issue only if reasonable jurists could debate (1) whether the petition states a valid claim of the 9 denial of a constitutional right and (2) whether the court's procedural ruling was correct. Id. 10 The COA standard is not high. Williams must only “‘sho[w] that reasonable jurists could 11 debate’” the district court's resolution or that the issues are “‘adequate to deserve encouragement to 12 proceed further.’” Hayward v. Marshall, 603 F.3d 546, 553 (9th Cir. 2010) (en banc) (citations 13 omitted). Having reviewed its determinations and rulings in adjudicating Williams’s petition, the 14 court finds that the Slack standard is met with respect the court’s resolutions of Claims One(G) and 15 Sixteen. The court therefore grants a certificate of appealability as to those issues. The court 16 declines to issue a certificate of appealability for its resolution of any procedural issues or any of 17 Williams’s other habeas claims. 18 19 IT IS THEREFORE ORDERED that petitioner's third amended petition for writ of habeas corpus (ECF No. 135) is DENIED. The Clerk shall enter judgment accordingly. 20 IT IS FURTHER ORDERED that a Certificate of Appealability is issued as to the court’s 21 resolution of Claims One(G) and Sixteen. 22 \\\ 23 \\\ 24 \\\ 25 \\\ 26 28 1 IT IS FURTHER ORDERED that the Clerk of the Court shall substitute Renee Baker for 2 E.K. McDaniel, on the docket, as the respondent warden in this action, and shall update the caption 3 of the action to reflect this change. 4 DATED: July 1, 2012 5 6 STATES UNITED STATES DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 29
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