Opinion
No. C 01-4026 MMC (PR)
October 30, 2003
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner is a California prisoner who filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. After an initial review, the Court ordered respondent to show cause why the petition should not be granted. Respondent has filed an answer, along with a memorandum and exhibits. Petitioner has filed a traverse, also supported by a memorandum and exhibits.
FACTUAL AND PROCEDURAL BACKGROUND
In 1990, petitioner was charged in San Mateo County Superior Court with first degree murder, with torture as a special circumstance and a sentence enhancement for the use of a "knife, razor or scalpel and a ligature." After the prosecution agreed not to seek the death penalty and the special circumstance was dropped, petitioner entered a plea of no contest to the charge of first degree murder and to the weapons enhancement. On July 13, 1990, the trial court sentenced petitioner to 26 years to life in state prison. Petitioner did not file a direct appeal, but eventually filed a petition for a writ of habeas corpus in the superior court, raising the claims he raises in the instant federal petition. The superior court held a four-day evidentiary hearing, after which it denied the petition. The California Court of Appeal and the Supreme Court of California denied petitioner's subsequent habeas petitions in opinions consisting of one line each.
Because petitioner pled no contest, the facts of the offense were not developed at a trial. In its opinion denying petitioner's petition for a writ of habeas corpus, however, the San Mateo County Superior Court summarized the facts as follows:
The victim's body was discovered on February 3, 1990, in the Crystal Springs area of San Mateo County, just off Polhemus Road. There was clothing on [the] victim's body but her breasts were exposed. Her head showed multiple signs — about the size of a broomstick — of traumatic blows having been struck. In addition, her lip was lacerated and there was an abrasion across her neck. She had been partially scalped — i.e., the entire frontal portion of her scalp had been cut away from her skull. There were bruises on her left breast and right hand. It was the opinion of the autopsy doctor [Dr. Ferrer] (who testified at the preliminary hearing) that death resulted from extensive brain injury caused by multiple trauma to her head. It was further his opinion (in his pathology report) mat the partial scalping occurred before death; however, his testimony at the preliminary hearing was that it may have occurred just before, at, or just after, death.
The victim had been residing with her mother until January 31, 1990, which was the last time her mother saw her alive. A witness was contacted by the San Mateo County Sheriff's Department who reported that she had seen the victim in Petitioner's company the evening of January 31, 1990, and that they had invited her to "party" at Petitioner's residence mat night as it was Petitioner's birthday. On February 5, 1990, Sheriff's deputies contacted Petitioner, who advised them in an un — Mirandized statement that he had been with the victim the night of January 31st, from 10:00 p.m. until 3:00 a.m., having dropped her on at her home in San Francisco. He said he and the victim spent time drinking champagne at his residence. Petitioner was not taken into custody on February 5th.
Sheriff's deputies conducted searches of Petitioner's San Francisco residence and vehicle. The residence search was pursuant to a search warrant and large amounts of blood were found in the living room and bedroom areas. A scalpel was seized but no blood was found on it. Also seized was a one-page Legal Advice and Referral Clinic form which contained the folio wing words, written by Petitioner: "extenuating circumstances — crime of passion, influence of alcohol/crack/knife/assault/victim had long record of provocative harassment/no previous record/he would like to confess but wants to know what range of penalties to expect. Already lied to police."
Petitioner's vehicle was searched twice — once pursuant to a search warrant — and these searches produced evidence of human blood in the interior of the vehicle, a serrated knife, a baseball bat with blood on it and fibers matching those of a bloody towel found near victim's body.
On February 7, 1990 Petitioner was again interviewed, having waived his Miranda rights until reasserting them, at which time the interview was terminated. On this occasion Petitioner gave essentially the same account, except he added that he and the victim had also smoked rock cocaine and drunk vodka, that he had purchased some methamphetamine which was used only by the victim and that they had visited the witness who reported their having asked her to return with them to Petitioner's residence for a party. On this same date Sheriff's deputies contacted Petitioner's sister-in-law who stated that on the evening of January 31st she was in another portion of Petitioner's residence and heard a struggle and yelling coining from Petitioner's room, and a female voice saying, "You're hurting me — let go of my arm, you're hurting me!" A neighbor of Petitioner's was also contacted, who reported hearing, on the night of January 31st, the sound of a female yelling and screaming, emanating from Petitioner's residence, as well as seeing Petitioner in the company of two black women. However, neither of the descriptions the witness gave of the two black women matched that of the victim (who was black).
The factual background is based on the preliminary hearing, the witnesses' statements and the police reports submitted prior to the plea, as well as the evidence presented at the evidentiary hearing. Because the state appellate courts issued summary opinions, this Court looks to the decision of the state superior court, as that is the last state court to address petitioner's claims in a reasoned decision. See LaJoie v. Thompson, 217 F.3d 663, 669 n. 7 (9th Cir. 2000); see, e.g., Avila v. Galaza, 297 F.3d 911, 918 n. 6 (9th Cir. 2002) (treating superior court referee's report as last reasoned state court decision, where report summarily adopted by court of appeal and petition for review to California Supreme Court denied without comment);see also 28 U.S.C. § 2254(e)(1) (requiring district court to presume correct state court's factual findings unless petitioner rebuts presumption of correctness by clear and convincing evidence).
Testing revealed that the stains were compatible with the victim's blood, but could not have come from petitioner
Petition, Exh. A2 at 3-5 (emphasis and footnote in original).
DISCUSSION
A. Standard of Review
This Court may entertain a petition for a writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a);Rose v. Hodges, 423 U.S. 19, 21 (1975).
A district court may not grant a petition challenging a state conviction or sentence on the basis of a claim that was reviewed on the merits in state court unless the state court's adjudication of the claim: "(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 (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." 28 U.S.C. § 2254(d); Williams v. Taylor, 120 S.Ct. 1495, 1523 (2000). Habeas relief is warranted only if the constitutional error at issue had a "`substantial and injurious effect or influence in determining the jury's verdict.'" Penry v. Johnson, 121 S.Ct. 1910, 1920 (2001) (quoting Brecht v. Abrahamson, 507 U.S. 619, 638 (1993)). A federal court must presume the correctness of the state court's factual findings. 28 U.S.C. § 2254(e)(1).
B. Legal Claims
1. Ineffective Assistance of Counsel
Petitioner claims that he is entitled to habeas relief because his trial counsel, Charles Robinson ("Robinson"), provided ineffective assistance in violation of his Sixth Amendment right to counsel. Specifically, petitioner claims that counsel: (1) used an inappropriate expert to evaluate petitioner's intoxication defense; (2) failed to provide the expert with pertinent background information or to provide petitioner with a complete file; (3) failed to keep petitioner apprised of important developments in the case; (4) allowed petitioner to plead guilty without investigating a third-party defense or informing petitioner that such a defense was available; and (5) failed to seek dismissal of the allegation of torture, based on insufficient evidence.
a. Legal Standard
A claim of ineffective assistance of counsel is cognizable as a claim of denial of the Sixth Amendment right to counsel, which guarantees not only assistance, but effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). In order to prevail on a Sixth Amendment ineffectiveness of counsel claim, petitioner must establish two things. First, he must establish that counsel's performance was deficient, i.e., that it fell below an "objective standard of reasonableness" under prevailing professional norms. See id. at 688. The relevant inquiry is not what defense counsel could have presented, but rather whether the choices made by defense counsel were reasonable. See Babbitt v. Calderon, 151 F.3d 1170, 1173 (9th Cir. 1998). Second, he must establish that he was prejudiced by counsel's deficient performance, i.e., that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id.
For purposes of a § 2254(d) analysis, the Strickland framework for analyzing ineffective assistance of counsel claims is considered to be "clearly established Federal law, as determined by the Supreme Court of the United States." See Williams (Terry) v. Taylor, 529 U.S. 362, 404-08 (2000). The Strickland prejudice analysis is complete in itself. As a result, there is no need for additional harmless error review pursuant to Brecht v. Abrahamson, 507 U.S. 619, 637 (1993).
b. Evidentiary Hearing
The trial court held an evidentiary hearing on petitioner's claims of ineffective assistance of counsel and made the following findings:
With respect to information developed by the defense, Mr. Robinson retained a private investigator who, in addition to a number of other endeavors on petitioner's behalf, comprehensively interviewed some nine relatives and close friends of Petitioner about him, including his drinking habits and drug usage.
In April 1990, Mr. Robinson further obtained materials from an attorney whom Petitioner had consulted before Mr. Robinson's appointment. Petitioner had, prior to Mr. Robinson coming into the case, visited a legal clinic at Hastings College of the Law, which had referred him to his first attorney. One of the documents Mr. Robinson obtained from this attorney was entitled "Scenario" (Petitioner's Exhibit E). Written by Petitioner, the document describes how he and the victim argued over possession of the crack cocaine pipe, causing petitioner to fly into a rage and strike her on the head with the empty champagne bottle. The document continues, "and she fell on my bed stunned. I think that's when I panicked. Images of her telling family and friends flashed through my mind. By some twisted logic, the words `finish her off went through my mind and they'll never know. So I hit several more times on the head to Knock her out. Then I choked her with a towel till she stopped breathing."
Mr. Robinson further arranged for a psychiatrist (Dr. Missett) and a psychologist (Dr. Berg) to evaluate Petitioner. Dr. Missett did so in February 1990, later writing a 34-page typewritten report, and Dr. Berg examined him in April 1990, later writing a 10-page typewritten report. Petitioner told both doctors substantially the same story he had told the police as to the drugs and alcohol he had consumed on the night in question, and substantially the same story set forth in his "Scenario" document, with respect to his altercation with the victim. He further advised each of the doctors he had, after killing the victim, disposed of the body by transporting it in his vehicle. Both of the doctors inquired into petitioner's drug and alcohol usage on the night in question, as well as prior thereto. Mr. Robinson took great care to insure that each of the evaluations were conducted independent of each other; there was no comparing of notes between Drs. Missett and Berg in this case. Mr. Robinson purposely gave Dr. Missett virtually everything he had on the case (police, lab and coroner's reports and reports of private investigator), while Dr. Berg was given little or no background, save that which he obtained from petitioner.
Dr. Missett, while considering petitioner's use of drugs and alcohol, both before and on the evening of January 31, 1990, `could find no indication . . . that he was, as a result of mental disease or disorder or defect unable to think about beforehand his act, that he was unable to think carefully about the act in which he was involved, that he was unable to weigh carefully the pros and cons against proceeding with that set course of action, that he was unaware of the nature and quality of his act at the time, that he was unable at the time to distinguish right and wrong, that he was at the time unable to harbor malice or unable to recognize at the time that he was indeed killing a human being, or that he was unable to intend the killing of [the victim].'
Dr. Berg concluded, `There is no data . . . which would suggest any diagnosis of mental disorder [nor] to diagnosis [sic] a specific personality disorder.' Dr. Berg also noted that the results of the tests he administered on Petitioner all seemed to be within normal limits. Dr. Berg orally reported to Mr. Robinson (before writing his report) that, in his opinion, petitioner's ingestion of alcohol and drugs did not impede his mental processes in the commission of the crime and that his mental capacity was not diminished.
The defense investigator gathered evidence on Petitioner's prior drug usage and attempted to ascertain the specific amounts of crack cocaine and alcohol invested by Petitioner on the evening in question, and reported orally to Mr. Robinson that between 10:00 p.m. and 1:00 a.m. Petitioner consumed one bottle of champagne, three-quarters of a fifth of vodka, one-half of a $20 cocaine rock and possibly one-half of a $10 cocaine rock.
Finally, Mr. Robinson spoke frequently with Petitioner. Not counting the times they were together in court, the two spoke approximately thirty times, approximately twenty-one of those conversation being face-to-face. Except for the first time they met, each one of the meetings included a discussion of the elements of the crime charged. Mr. Robinson specifically recalls advising Petitioner that the elements of First Murder (sic) are intent to kill, malice aforethought and premeditation and deliberation; that the elements of Second Degree Murder are intent to kill and malice aforethought or dangerous act-base, antisocial purpose; that the elements of voluntary manslaughter are intent to kill and heat of passion or imperfect self-defense; and that the elements of involuntary manslaughter are an inherently dangerous misdemeanor or an act involving a high degree of risk of death without due caution or circumspection/intoxication. He also recalls discussing with Petitioner the difference between "Torture Murder First" and "Torture Murder Second." Petitioner on several occasions wondered why manslaughter was not a possibility, and Mr. Robinson explained, approximately fifteen times, that this was not viable inasmuch as Petitioner would have to take the stand in order to set up any possibility of "diminished capacity" and that he would then be cross — examined about everything showing malice aforethought and premeditation and deliberation. Mr. Robinson thought this would very likely result in a finding of First Degree Murder with the special circumstance being found true, leading to a sentence of life without possibility of parole. Mr. Robinson felt strongly that the best they could do was First Degree Murder without the special circumstance, and expressed this view to petitioner.
Petitioner testified that in discussing the elements of murder with Mr. Robinson (and petitioner agrees there were numerous such discussions), petitioner was led to believe that what distinguished first and second degree murder was that first degree required a "decision" to kill, while second degree murder was an "impulsive" act. He maintains that Mr. Robinson never advised him the "decision" must have been considered beforehand. This version of the advice given to petitioner was specifically denied in Mr. Robinson's testimony. Mr. Robinson recalls advising petitioner that premeditation and deliberation require a weighing of the considerations for and against killing, including the consequences of killing, before deciding to kill.
Petition, Exh. A2 at 5-9 (emphasis, alterations and footnote in original).
c. Selection of Defense Expert
Petitioner claims that Robinson was ineffective in his selection of experts because they were allegedly not experts on intoxication and substance abuse, and therefore not qualified to render an opinion on petitioner's intoxication, a defense petitioner wished to present.
Expert testimony is necessary when lay persons are unable to make an informed judgment without the benefit of such testimony. See Caro v. Calderon, 165 F.3d 1223, 1227 (9th Cir. 1999). Counsel must conduct an investigation sufficient to allow a determination of the types of experts needed to be consulted. See id. at 1226. Petitioner does not dispute that Robinson conducted a sufficient investigation into the case, through his and his investigator's numerous interviews of petitioner and other witnesses, to be able to determine that an expert on petitioner's mental state and his intoxication would be necessary. Rather, petitioner contends that the experts Robinson chose were not qualified because they were not toxicologists; Dr. Missett was a psychiatrist and Dr. Berg a psychologist.
"The choice of what type of expert to use is one of trial strategy and deserves a heavy measure of deference." Turner v. Calderon, 281 F.3d 851, 876 (9th Cir. 2002). Petitioner complains that Drs. Berg and Missett did not provide calculations of petitioner's blood alcohol and cocaine levels, which, according to the toxicology expert who testified at the evidentiary hearing in state court, a toxicologist would have provided. (RT at 524-26). The fact that the experts were not toxicologists and did not provide these calculations does not necessarily make them unqualified to render an opinion on the effect of intoxication on petitioner's mental state. Drs. Missett and Berg are both mental health professionals, and there is undisputed evidence that Dr. Missett had testified as an expert on intoxication in the past. At the evidentiary hearing, Robinson testified: "I have used Dr. Missett before, and I have used him since as an expert in the effect of cocaine and alcohol, and methamphetamine and alcohol, on the actions of human beings, and he is qualified and testified in court on those issues." (RT at 126-27). Indeed, at the evidentiary hearing, petitioner's own expert in "criminal law," John Philipsborn ("Philipsborn"), confirmed that he had used Dr. Missett as an expert on the use of drugs in the past. (RT at 609). Although Drs. Berg and Missett did not make specific drug and blood alcohol level calculations, they interviewed petitioner, and had the police and investigator's reports, with respect to the amounts of drugs and alcohol petitioner had ingested. There is no indication that the information they obtained, either from petitioner or the reports, was inaccurate or incomplete. Nor is there any indication that the experts could not, based on this information, form accurate opinions as to the effect of the drugs and alcohol on petitioner's mental state.
Petitioner points to Philipsborn's testimony that intoxication "isn't a real specialty of" Dr. Missett and argues such testimony establishes that Dr. Missett was not qualified. The statement on which petitioner relies, however, is taken out of context. Philipsborn testified: "I know that he [Dr. Missett] has extensive experience in assisting counsel both for the prosecution and defense in the preparation of criminal cases. I personally have actually asked him to assist me in cases involving the use — involving drug abuse, though I have never used him as the only resource in such cases. Even though he has an MD and a PhD, my sense is that isn't a real specialty of his. It's an area that he's familiar with." (RT at 609). Although it was Philipsborn's "sense" that drug use was not Dr. Missett' s "specialty," Philipsborn acknowledged Dr. Missett's familiarity with the subject. Philipsborn does not say that he would have consulted a toxicologist. At most, his testimony suggests that he would have sought a second expert opinion, which is what Robinson did. Moreover, Philipsborn had used Dr. Missett on the issue of drug use in the past, and recognized Dr. Missett's "extensive experience" and familiarity with drug use. In sum, Philipsborn's testimony does not amount to an opinion that Robinson's use of Drs. Missett and Berg was outside the range of reasonable professional conduct.
In support of his argument, petitioner also cites Caro 165 F.3d 1223, a case in which the petitioner had received the death penalty. The petitioner in Caro in addition to suffering head injuries and severe physical abuse as a child, had suffered an "extraordinary exposure" to pesticides from bathing in and drinking contaminated water, from working in fields where such pesticides were heavily used, and from working in vats containing them. Id. at 1288. The court found defense counsel was ineffective at the penalty phase because he had neither informed his mental health experts about petitioner's exposure to pesticides, nor had he consulted a neurologist or toxicologist to explain that the possible effects of the pesticides included "inexplicable and aggressive behavior." Id. at 1226-28. Unlike defense counsel in Caro Robinson did inform the mental experts he consulted about petitioner's impairment, and they did not recommend to him that he consult a toxicologist. The asserted impairment in this case — drug and alcohol use — is far more straightforward and common than the combination of "extraordinary" pesticide exposure, head injuries and childhood physical abuse at issue in Caro. Indeed, theCaro court noted that "Caro's brain injuries and poisoning are different from the facts of any other case that has been called to the court's attention." Id. at 1228. Consequently, given all of these distinguishing circumstances, the fact that counsel inCaro should have consulted a toxicologist or neurologist does not establish that Robinson likewise was required to do so.
More instructive is the Ninth Circuit's decision in Turner v. Calderon, 281 F.3d 874, in which the petitioner claimed that his counsel should not have used a "general psychologist," but rather an expert who specialized in the effects of PCP and other drugs on mental capacity. See id. at 874. There, the court concluded that because the general psychologist testified as to the effects of PCP use, calling him as an expert was not constitutionally ineffective assistance, even if "a more specialized expert would have been more persuasive."See id. at 875-76. Here, Robinson consulted not only a psychologist but also a psychiatrist, both of whom evaluated the effects of drugs and alcohol on petitioner's mental state, with both concluding, inter alia, that petitioner's mental capacity was not impaired. Even assuming the use of additional experts, such as a toxicologist, could have been more persuasive, the failure to do so, as in Turner, does not amount to ineffective assistance of counsel.
In sum, in the absence of any recommendation by the two experienced mental health experts that petitioner hire a toxicologist, and given the relatively common nature of petitioner's impairment, Robinson's decision to rely on the testimony of Drs. Missett and Berg was reasonable. Accordingly, petitioner's claim that his counsel was ineffective in the selection of experts fails.
d. Background Information to the Experts
Petitioner claims that he received ineffective assistance of counsel because Robinson did not supply Dr. Missett with sufficient background information regarding petitioner's intoxication defense. When there is a need for expert consultation, counsel must provide the expert with information relevant to his conclusions. Caro, 165 F.3d at 1227. Absent a request by the expert for background information, however, counsel does not have a duty "to acquire sufficient background material on which an expert can base reliable psychiatric conclusions." Bloom v. Calderon, 132 F.3d 1267, 1277 (9th Cir. 1997); see, e.g., Turner v. Calderon, 281 F.3d at 876-77 ("Failure to provide a psychologist with facts about a defendant's family history ordinarily cannot support a claim of constitutionally ineffective assistance."). Nor can counsel be faulted for failing to "track down" every record that might possibly relate to the defendant's mental health. See Bloom, 132 F.3d at 1278.
Here, Robinson testified that he gave Dr. Missett "all of the background information," including the police reports, pathology reports, petitioner's "Scenario" and diary, letters by petitioner to his family, and reports of the defense investigators interviews with witnesses. (RT at 744, 757-58). Petitioner contends that Robinson is lying because there are three items missing from Dr. Missett's report, wherein he lists the materials he consulted. The three subject items are the preliminary hearing testimony of Dr. Ferrer, in which Dr. Ferrer retreated from his earlier position that the scalping occurred before death; a report by another pathologist retained by the defense, Dr. Jindrich, likewise opining the scalping could have been conducted post-mortem; and reports of six of the nine interviews the defense investigator conducted with petitioner's friends and family members. (See Pet. Exh. H).
As an initial matter, the Court notes there is no evidence, or even indication, that Dr. Missett ever made a request for this information. Absent such request, Robinson had no duty to provide it. See Bloom, 132 F.3d 1277; Turner, 281 F.3d 876-77. Moreover, neither the preliminary hearing testimony of Dr. Ferrer, which was given May 25, 1990, nor the Jindrich report, which is dated May 9, 1990, could have been listed in the report of Dr. Missett cited by petitioner, because that report pre-dated those materials. See Pet. Exhs. H, G2; Respt. Exh. 12, RT at 754-55. Robinson testified that he continued to provide Dr. Missett with all of the background information "as it came in," and that there was no cut-off date beyond which he stopped supplying information to Dr. Missett. (RT at 744, 757-58). Robinson also specifically testified that he discussed Dr. Ferrer's preliminary hearing testimony with Dr. Missett with respect to when the scalping occurred. (RT 756). The record does not specifically indicate whether Robinson discussed or showed the Jindrich report to Dr. Missett. Based on Robinson's testimony that Dr. Missett received all of the background information "as it came in," however, it reasonably can be inferred that Dr. Missett received the Jindrich report. In any event, Dr. Jindrich's report was duplicative of Dr. Ferrer's preliminary hearing testimony that the question of whether the scalping occurred before or after the killing could not be definitively determined. Robinson had no obligation to provide Dr. Missett with duplicative information that had not been requested.
As Robinson explained, Dr. Missett, in accordance with his general practice, wrote the report on May 1, 1990, but kept it in his computer and did not send it to Robinson until Robinson requested it in early June. (RT at 754-55).
The record is also unclear as to whether Dr. Missett was informed of the six interviews not listed in his report. Robinson, however, was only obliged to provide Dr. Missett with information relevant to his evaluation. Cf. Caro, 165 F.3d at 1227 (finding counsel ineffective in failing to provide mental experts with any information about petitioner's "extraordinary" exposure to pesticides where pesticides had been shown to cause "inexplicable and aggressive" behavior). These witnesses could not provide Dr. Missett with information about petitioner's intoxication on the night of the killing because they were not witnesses to the events of that night. Rather, petitioner describes them as "character" witnesses who, according to petitioner, could provide "a positive assessment of petitioner's character," including that he had a positive attitude towards women. While character witnesses might have been useful at petitioner's trial, Dr. Missett was not retained to evaluate petitioner's general character but rather the specific effects of drugs and alcohol on petitioner's mental state on the night of the killing.
Robinson testified that he remembered discussing "some" of the interviews with Dr. Missett, but did not remember which ones. (RT at 758).
The witnesses included petitioner's former boss, a family friend, his father, his former wife, his brother and his sister.
To whatever extent these witnesses also could have provided information as to petitioner's past drug and alcohol use, such information would have been duplicative of the information petitioner himself provided to the experts on this subject.
In sum, the record does not support petitioner's contention that Robinson failed to provide sufficient information to Dr. Missett. Accordingly, to the extent petitioner's claim that he received ineffective assistance of counsel is based on this contention, such claim fails, as the record indicates that Robinson provided Dr. Missett with all of the background information necessary for Dr. Missett's evaluation.
Petitioner also claims that Robinson failed to provide him with the court file until petitioner requested it approximately one year after the sentencing. Petitioner makes no allegation as to how he was prejudiced by any such delay. Petitioner did not miss any deadline in connection with the filing of his habeas petition, the evidentiary hearing on his petition was not held until several years later, and there is no indication from the state courts that the rejection of his claims was based on any procedural deficiency. Petitioner further claims that when petitioner's counsel gave him the court file after the evidentiary hearing, he discovered that six of the witness interviews were missing from the file. There is no indication that the interviews would have been of any particular assistance, however, as habeas counsel had received summaries thereof prior to the evidentiary hearing and did not use them in any fashion to support the habeas petition. The lack of reference to the interviews by habeas counsel, and the failure of petitioner to make any further request for them from Robinson before the evidentiary hearing, belies petitioner's claims that they would have been of benefit to him. Petitioner states that by not having the interviews he was prevented from asserting the claim in his habeas petition that counsel had also failed to provide the interviews to Dr. Missett. The fact that the interviews were missing from the case file Robinson gave to petitioner, however, does not establish that Robinson had not earlier provided them to Dr. Missett, and, in any event, that claim, for the reasons described above, has no merit. Consequently, as the record does not indicate that petitioner was prejudiced by the alleged failure of counsel to provide him with a complete case file, to the extent his claim that he received ineffective assistance of counsel is based on his contention that he failed to receive such material, such claim fails.
These are the same interviews of petitioner's friends and family that allegedly were not provided to Dr. Missett
e. Failure to Apprise Petitioner of the Developments in the Case
Petitioner claims that counsel was ineffective because he delayed informing petitioner of Dr. Missett's conclusion that petitioner did not have an intoxication defense. According to petitioner, Robinson delayed informing him of Dr. Missett's report, from May 1, 1990, the date petitioner alleges Robinson received the report, until early June 1990. The record indicates, however, that Robinson did not actually receive the report from Dr. Missett on that date. As Robinson explained at the evidentiary hearing, "I generally tell [Dr. Missett] not to put anything in writing until I ask for it, and he'll generally write it up, keep it in his computer and then send it to me when I ask him for it." (RT at 754). As Robinson further testified, May 1 was the date Dr. Missett wrote the report on his computer, but Robinson did not receive the report until he requested it in June, (RT at 754-55), at which time he provided a copy to petitioner. To the extent petitioner is arguing that Robinson should not have waited until June to request the report, such argument is unavailing. Robinson explained that he requested the report from Dr. Missett at such time as the prosecution indicated it would not be seeking the death penalty. (RT at 755). This was a reasonable tactical decision because once the report was sent to Robinson, it was subject to discovery by the prosecution. In waiting until after the prosecution's decision to forego the death penalty, Robinson prevented Dr. Missett's adverse findings on the issue of intoxication from potentially affecting the prosecution's decision to petitioner's detriment. Additionally, new information was expected to be received after May 1, 1990, including the preliminary hearing testimony and the Jindrich report, which Robinson wanted to convey to Dr. Missett before the report was finalized. Accordingly, Robinson's decision to defer requesting Dr. Missett's report until early June was reasonable and did not amount to constitutionally ineffective assistance of counsel.
f. Third-Party Defense to Allegation of Special Circumstance of Torture
Petitioner claims that Robinson failed to investigate a third-party defense to the special circumstance allegation of torture. In addition to being charged with murder, petitioner was charged with the special circumstance of torture, which requires a finding that the defendant intentionally inflicted "extreme cruel pain and suffering upon a living human being." See CALJIC 8.81.18. Although petitioner admitted to the homicide, he denied having engaged in the partial scalping of the victim. According to petitioner, he told Robinson that he had a theory that a homeless person from "some nearby homeless encampment had found the body and, because that body threatened the existence of this ideally situated encampment, took his frustration out on the body as a way to get the dumper (me) in deeper trouble." Pet.'s Decl. ¶ 26. Petitioner faults Robinson for failing to investigate this theory.
A defense attorney has a duty to conduct reasonable investigations or to make a reasonable decision that a particular investigation is unnecessary. See Strickland, 466 U.S. at 691, Turner, 158 F.3d at 456. Strickland directs that "`a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.'"Silva v. Woodford, 279 F.3d 825, 836 (9th Cir. 2002) (quotingStrickland, 466 U.S. at 491). Instead of investigating petitioner's theory attributing the scalping to a third party, Robinson sought to establish that the scalping took place after death, as torture must be inflicted on a living human being to support a finding of the special circumstance. Robinson hired an independent pathologist, Dr. Jindrich, to investigate this possibility, and Dr. Jindrich found that the scalping could have occurred postmortem. After Dr. Jindrich issued his report, Dr. Ferrer, who conducted the autopsy, revised his initial assessment that the scalping had occurred before death, and testified at the preliminary hearing that the scalping could have occurred postmortem. Once the prosecutor's own medical examiner allowed for the possibility that the scalping had occurred after death, Robinson had established reasonable doubt as to whether or not the special circumstance of torture could be proved based on the scalping. Indeed, after the preliminary hearing, the prosecutor decided not to seek the death penalty and agreed to a plea bargain that did not include the torture allegation. Because Robinson effectively used an independent pathologist to create doubt as to whether the scalping constituted torture, it was not necessary for him to also investigate petitioner's third-party theory.
The state court explained that under California law the special circumstance of torture could also have been based on the multiple blows to the victim's head or the strangulation, both of which petitioner admits to inflicting. Petitioner does not dispute this assessment of California law, and Robinson testified that he recommended the plea bargain in part because of his determination that torture could be proved alternatively, based either on the blows to the head or the strangulation. (RT at 72-73).
In addition, any defense based on petitioner's third-party theory was far-fetched. Petitioner does not present here, nor did he present to Robinson, any evidence indicating there was a homeless, or any other, person in the vicinity of the body when it was dumped, much less that such a person wanted to preserve a homeless encampment, and was so angry that he would scalp a dead body to exact revenge on the killer. Secondly, both defense experts were of the opinion that petitioner was the scalper. Dr. Berg, the defense psychologist, told Robinson that petitioner's stated inability to remember the scalping was because he either did not want to remember it or was disassociating himself from the episode. (RT at 118-19). The other defense expert, Dr. Missett, told Robinson that it was unlikely that petitioner in fact did not remember scalping the victim, in light of his clear recitation of the events surrounding the scalping. (RT at 158). In the absence of anything to substantiate petitioner's third-party theory, and given the opinions of the two defense experts that petitioner committed the scalping, counsel reasonably could have chosen not to investigate the third-party defense and instead attempt to demonstrate that the scalping was not torture because it occurred after death. Accordingly, counsel was not constitutionally ineffective in failing to investigate petitioner's theory that a homeless man had scalped the victim.
Petitioner also claims that counsel was ineffective in failing to advise him that there existed in the law a third-party defense to the torture charge. Petitioner, however, cannot demonstrate prejudice based on Robinson's failure either to investigate or advise petitioner about the third-party defense. Where, as here, a petitioner pleads guilty pursuant to the advice of counsel, but alleges that counsel failed to investigate potentially exculpatory evidence, the determination of whether the error "prejudiced" the defendant will depend on the likelihood that discovery of the evidence would have led counsel to change his recommendation as to the plea. Hill 474 U.S. at 59. This assessment will depend in large part on a prediction of whether there is a reasonable likelihood that the evidence would have affected the outcome of a trial. Id. Similarly, where the error is a failure to advise of a potential affirmative defense, the resolution of the "prejudice" inquiry will depend largely on whether the affirmative defense likely would have succeeded at trial. Id. Given the other evidence in the case, which included petitioner's admission to strangling, killing and striking the victim on the head multiple times, as well as the discovery of a scalpel in petitioner's residence, petitioner would have had a difficult time persuading the jury that he did not also commit the partial scalping. Nevertheless, even if he did manage to so persuade the jury, the jury reasonably could have determined that multiple blows to the victim's head and strangulation constituted infliction of "extreme cruel pain and suffering" so as to establish torture. In short, there is no reasonable likelihood that the outcome of a trial would have been different if Robinson had investigated and advised petitioner about the third-party defense to the scalping allegations. Consequently, petitioner was not prejudiced by Robinson's failure to advise him about such defense.
The Court finds it unlikely, although assumes for the purpose of this discussion, that petitioner did not already know that he could not be convicted of torture if, without petitioner's knowledge, someone else had done the torturing.
g. Motion to Dismiss Special Circumstance Allegation
Petitioner claims that counsel was ineffective for failing to file a motion to dismiss the special circumstance of torture based on insufficient evidence.
The state appellate courts rejected this claim. Because their opinions were summary in nature, however, this Court "looks through" those decisions and presumes the appellate courts adopted the reasoning of the superior court, the last state court to have issued a reasoned opinion.See Ylst v. Nunnemaker, 501 U.S. 797, 804-05 n. 3 (1991) (establishing, on habeas review, "look through" presumption that higher court agrees with lower court's reasoning where former affirms latter without discussion); see also LaJoie v. Thompson, 217 F.3d 663, 669 n. 7 (9th Cir. 2000) (holding federal courts look to last reasoned state court opinion in determining whether state court's rejection of petitioner's claims was contrary to or an unreasonable application of federal law under § 2254(d)(1)). The state superior court, in its order to show cause on the petition for a writ of habeas corpus, dismissed this claim because, as a matter of California law, there was sufficient evidence to support the allegation of torture as a special circumstance. The superior court cited the pathologist's report and preliminary hearing testimony regarding the multiple blunt force blows, the strangulation and the scalping as the evidence on which such a finding could be made.
A determination of state law by a state appellate court is binding in a federal habeas action. See Hicks v. Feiock, 485 U.S. 624, 629 (1988). Because the state appellate courts issued summary opinions in this case, they presumptively adopted the reasoning of the state superior court that, as a matter of state law, there was sufficient evidence to support the special circumstances allegation. See Ylst 501 U.S. at 804-05. That state law determination is binding on this Court. Counsel was neither deficient, nor was petitioner prejudiced by his counsel's failing to file a motion to dismiss the torture allegation, because such motion would have failed.
2. Voluntariness of Plea
Petitioner claims his guilty plea was involuntary in violation of his right to due process because his lawyer did not apprise him of all of the elements of the first degree murder charge. Because a guilty plea involves the waiver of three constitutional rights, specifically, the right to a jury trial, the right to confront one's accusers, and the privilege against self-incrimination, see Boykin v. Alabama, 395 U.S. 238, 242-43 (1969), due process requires that a guilty plea be both knowing and voluntary. For a guilty plea to a charged offense to be considered knowing and voluntary, a defendant, before entering that plea, must be informed of each of the elements of the offense, in other words, the essential facts the prosecution would be required to prove.United States v. Minore, 292 F.3d 1109, 1116-17 (9th Cir. 2002); see also Haves v. Kincheloe, 784 F.2d 1434, 1438-40 (9th Cir. 1986) (holding failure to inform defendant of elements of second degree murder rendered plea involuntary).
There is no dispute that petitioner met with Robinson, his attorney, approximately thirty times, and that in virtually all of these meetings they discussed the elements of the charged crimes, including first degree murder. Robinson testified, and the superior court found, that he informed petitioner as to all of the elements of first degree murder. (RT at 144-49). Petitioner does not dispute the fact that Robinson informed him of him all of the elements of first degree murder. Rather, he complains that in explaining the elements of premeditation and deliberation, Robinson did not use the language of the California model jury instructions regarding these elements. CALJIC 8.20 explains that premeditated means "considered beforehand" and deliberation involves "careful thought and weighing of considerations for and against the proposed course of conduct." According to petitioner, Robinson told him that premeditation means "to have in mind beforehand," and that deliberation is like a "decision." (RT at 688, 696-97).
Robinson testified that he explained the premeditation and deliberation elements to petitioner using layman's terms, as opposed to the terminology in CALJIC 8.20, as well as how the evidence in the case could be used to prove those elements. (RT at 144-49).
Under the authority cited above, due process only requires that petitioner be informed of the elements of the offense. Petitioner cites no authority, and this Court is aware of none, that due process requires more, such as an explanation using the precise language from model jury instructions. Petitioner does not dispute that Robinson told him that premeditation and deliberation were elements of first degree murder. In the absence of authority that due process requires something more, petitioner is not entitled to habeas relief under § 2254(d)(1) on the ground that Robinson did not use language employed in CALJIC to explain the premeditation and deliberation elements. Moreover, the record indicates that Robinson's explanation was neither improper nor misleading. Robinson's alleged statement to petitioner that first degree murder requires that a decision to kill be made before the act of killing is committed is not inconsistent with the requirements of premeditation and deliberation. Robinson had numerous discussions with petitioner about the elements of the offense and how they applied to petitioner's case. The fact that counsel used language that was different from CALJIC, but not misleading, does not, contrary to petitioner's argument, amount to a failure to inform petitioner of those elements so as to render his guilty plea involuntary. Accordingly, petitioner's claim that his plea was not knowing and voluntary fails.
CONCLUSION
In light of the foregoing, the petition for a writ of habeas corpus is DENIED.
The Clerk shall terminate any pending motions and close the file.
IT IS SO ORDERED.