Three California state prisoners saw the denials of their respective § 2254 petitions at least partly reversed and remanded today, including one in a capital case.

Bemore v. Chappell, No. 12-99005 (Berzon with Reinhardt and Gould) --- In this capital habeas case, the Ninth Circuit affirmed the denial of a guilt-phase ineffective-assistance claim for want of an adequate showing on prejudice. But the court reversed the denial of a penalty-phase IAC claim, partly based on the deficient performance of counsel at the guilt phase.

The petitioner and another man robbed a liquor store in San Diego, and during the robbery an employee of the liquor store was brutally tortured and killed. Despite overwhelming evidence involving mental health and drug addiction that was available to show both diminished capacity and a reason not to impose a death sentence, counsel instead pursued a "novel" alibi defense. The petitioner testified that he couldn't have robbed the liquor store because at the time he was robbing a record store instead. And at the penalty phase, the mitigation plan was to portray the petitioner as a good guy with a drug problem -- a portrayal that was undermined, in part, by evidence that he had planned to poison the evening meal at the jail in the hopes of sending multiple inmates to the hospital and thereby facilitating the escape of at least some of them.

The opinion takes counsel to task for failing to investigate the petitioner's "alibi" and potential diminished-capacity defenses at the guilt phase, and concludes that the failure to investigate amounts to deficient performance under Strickland, Richter, and AEDPA. The basic flaw in the petitioner's alibi defense was that, based on the supposed timing of the robbery of the record store, the petitioner still had plenty of time to make it to the record store to commit that robbery and murder. But the petitioner's trial testimony omitted basic facts and got other details about the urban geography wrong. And defense counsel even went so far as to rattle the petitioner before he got on the stand, imploring him, "Just don't act like a nigger." An appropriate investigation into the plausibility of the alibi would have allowed counsel to competently advise the petitioner about testifying at trial. Instead, counsel's "failure adequately to investigate before putting on an alibi that was not really an alibi was constitutionally inadequate even under our 'doubly deferential' review."

Moreover, the penalty-phase investigation (which was handled by cocounsel without much, if any, direction from trial counsel) revealed information that might have supported a diminished-capacity defense permitted by California law. An expert prepared a report that indicated the petitioner suffered from organic brain damage and a "fundamental inability to control his behavior," and also raised the possibility of bipolar disorder. The petitioner himself freely admitted using PCP, heroin, marijuana, and cocaine over a 10-year period before the murder. The expert recommended a follow-up investigation, which never took place, either before trial or in postconviction proceedings. The state countered that this mental-health defense would have undermined the alibi defense, and thus absolved counsel of a duty to investigate the mental-health angle on the case. The court rejected this argument because there was no evidence that any strategic decisions on counsel's part were informed by adequate investigation.

Nevertheless, the court found no Strickland prejudice at the guilt phase. It was within the range of reasonableness for the California state court to conclude that there was no prejudice here, because the jury might well have taken the mental-health evidence as support for the premeditation element of the crime.

The court did find both deficient performance and prejudice at the penalty phase. Through preliminary-hearing testimony and interviews with the petitioner's neighbors, counsel was on notice of the petitioner's mental-health and drug-use history. So counsel had an expert conduct a preliminary interview. She chose this particular expert because he had written an article about a "sun child" theory -- "minority children from poor homes who, because of their talents, become immersed in affluent white society, but then subsequently act out and, due to the psychological stress of having to live in two different worlds, begin using drugs." The petitioner had played basketball in high school and college, and counsel thought that the petitioner would fit with this narrative. But when the expert's report mentioned different psychological issues, she stuck the report at the back of a drawer and forgot about it. Having "purposely truncated" the investigation into the petitioner's mental health, counsel was ill-prepared to present the full range of mitigating mental-health evidence to the jury. To be sure, some witnesses did testify about the petitioner's "drug problems and tumultuous upbringing." But expert testimony would have placed these facts in context of a diagnosis. The state argued that this would have opened the door to negative testimony about the petitioner being a self-indulgent psychopath who lacked empathy, particularly in light of the food-tampering incident at the jail. But for the panel, the failure to investigate meant that counsel also failed to investigate how to rebut these potential counterarguments. And investigation would have bolstered the "good guy with a drug problem" defense by turning it into a "good guy with a drug problem and mental-health issues" defense.

The petitioner was prejudiced by this lack of investigation. The jury was instructed to take mental health into account at the penalty phase, so expert testimony would have helped the jury do just that. The codefendant received a sentence of life with the possibility of parole based on his own mental-health evidence, and the judge said in denying the automatic motion for new trial that he had contrasted the codefendant's case with the petitioner's in denying that motion. And the absence of mental-health testimony at the guilt phase might have soured the jury at the penalty phase.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2015/06/09/12-99005.pdf

Lee v. Jacquez, No. 12-56258 (Nguyen with Schroeder and Pregerson) --- The Ninth Circuit reversed the dismissal of a California state prisoner's § 2254 petition on procedural-default grounds, holding that the state did not prove that the state-law procedural bar under Ex parte Dixon, 264 P.2d 513 (Cal. 1953), was firmly established or regularly followed at the time of the supposed default.

The Dixon bar precludes consideration in state habeas proceedings of claims that should have been raised on direct appeal. In a prior appeal, the court had affirmed the dismissal of some claims on the merits and remanded others because the district court had wrongly said that Dixon was categorically an independent and adequate state-law basis for denying a habeas claim. But that was before the Supreme Court decided Walker v. Martin, 131 S. Ct. 1120 (2011), so the prior holding had to be reevaluated. Martin involved a different procedural bar that was inherently discretionary; the Dixon bar, by contrast, "was meant to apply to all habeas claims that could have been raised on direct appeal but were not." For that reason, state courts should be able to apply it "mechanically and consistently" -- either a petitioner raised a claim on direct appeal, or she didn't. The state pointed to the exceptions to the Dixon bar found in In re Harris, 855 P.2d 391 (Cal. 1993), which include review of otherwise-barred claims for fundamental error or if there had been a favorable change in the law. The state argued that these exceptions made the Dixon bar discretionary, but the court disagreed. The discretionary aspect of the bar at issue in Martin was in the initial application of the bar; these Harris exceptions applied only in the face of a conclusion that the claim should have been, but was not, raised on direct appeal.

Because Martin did not change the conclusion that the Dixon bar was not categorically inadequate, the court then examined the record to see whether the state had proven that the Dixon bar was firmly established and regularly followed at the time of the petitioner's supposed default in state court. The court pointed out that the Dixon bar was inconsistently applied until September 30, 1993, when the California Supreme Court decided Harris. After that, however, it's unclear whether Dixon has been consistently applied. That is the backdrop against which the state's evidence must be measured. The state presented to the district court 4700 state habeas denials from the California Supreme Court that were roughly contemporaneous with the default in this case (June 10, 1999). The evidence showed that the application rate varied between 7 and 21 percent from August 1998 to June 2000. The court called this evidence "entirely insufficient to meet the state's burden of showing the Dixon rule's adequacy," because the state failed to present any evidence about the number of times the Dixon rule could have applied to a claim, but the state courts instead denied the claim on the merits. Moreover, the fact that the California Supreme Court frequently invokes multiple procedural bars when summarily denying a habeas petition showed some evidence of the Dixon rule's inconsistent application. Unwilling to give the state another chance to prove that the Dixon rule is adequate, the court remanded for consideration of the merits of the petitioner's claims.

Congratulations to Deputy Federal Public Defender Marta VanLandingham of the Central District of California.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2015/06/09/12-56258.pdf

Zapata v. Vasquez, No. 12-17503 (Fisher with Reinhardt and Berzon) --- The Ninth Circuit reversed the denial of a California state prisoner's § 2254 claim, holding that trial counsel rendered ineffective assistance in failing to object to the prosecutor's racial slurs during rebuttal closing argument. The opinion also names the prosecutor, a Deputy District Attorney in Santa Clara County, California.

The petitioner was convicted of first-degree murder with gang and firearm enhancements, and sentenced to two consecutive terms of 25 years to life. He was accused of killing a 19-year old student who was talking on a payphone; the circumstances surrounding the crime suggested that it was because the victim appeared to be a member of a rival gang. The only eyewitness to the shooting saw the shooter shoot the victim, who was standing at a payphone, after which the victim stumbled into a convenience store and then died. The eyewitness could not pick the shooter out of two photographic lineups. Other witnesses' testimony was nonspecific or vulnerable to attack because of bias.

The issue in this appeal revolves around statements that the prosecutor made in his rebuttal closing argument. Although his initial closing argument was based on the evidence presented at trial, his rebuttal closing argument involved a fictional account of the victim's last moments that was unsupported by any trial evidence and that included inflammatory racial slurs against Latinos of Mexican descent. Defense counsel failed to object to these statements, so the petitioner's claim of prosecutorial misconduct was procedurally defaulted. He relied on the ineffective assistance of trial counsel to excuse the default, and the court found ineffective assistance.

On habeas review under AEDPA, the question was whether the state courts had unreasonably rejected this ineffective-assistance claim. On direct appeal, the California Court of Appeal had characterized the prosecutor's rebuttal closing argument as involving "serious misconduct." The statements urged the jury to convict based on sympathy toward the victim and animus toward the petitioner rather than the trial evidence. Also, the statements misstated and manipulated the trial evidence. And using racial slurs "risked sparking visceral outrage among members of the jury and encouraged them to convict based on emotion rather than evidence." Even so, the state court had found no deficient performance in failing to object to these statements. That conclusion was not entitled to deference, because it essentially meant that no failure to object to prosecutorial misconduct during closing argument could ever amount to deficient performance. The failure to object could not have been strategic, because the statements came during rebuttal closing argument, meaning that defense counsel had no other opportunity to address them.

As for prejudice, the court found that the state courts' findings of no prejudice rested on unresaonable characterizations of the trial evidence, which the federal appeals court viewed as weak. Just because the petitioner resembled the likeness on a police sketch was not enough to convict, because no trial testimony linked the petitioner to the sketch. Testimony from a gang detective was unhelpful, because it did not establish that the shooter was from the same gang with which the petitioner was allegedly affiliated. There were other unwarranted assumptions in the state appellate court's description of the evidence. Furthermore, the timing of the comments (during rebuttal closing) and the trial judge's failure to give a curative instruction contributed to the federal court's finding of prejudice. The court thus reversed the denial of the petition and remanded with instructions to grant the writ.

Congratulations to Assistant Federal Public Defender Robert Carlin of the Northern District of California.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2015/06/09/12-17503.pdf