A divided three-judge panel of our court reversed the grant of the writ as to the penalty phase. Payton v. Woodford, 258 F.3d 905 (9th Cir.), reh'g en banc granted, 273 F.3d 1271 (2001). We then agreed to rehear this case en banc.
A three-judge panel of this court, however, disagreed that Payton's penalty phase was fundamentally unfair, reversed the district court, and ordered the writ vacated. Payton v. Woodford, 258 F.3d 905 (9th Cir. 2001). We then took this case en banc, adopted the three-judge panel's decision that there were no guilt phase errors, but affirmed the district court's decision with respect to the penalty phase.
A three-judge panel of this court, however, disagreed that Payton's penalty phase was fundamentally unfair, reversed the district court, and ordered the writ vacated. Payton v. Woodford, 258 F.3d 905 (9th Cir. 2001). We then took this case en banc, adopted the three-judge panel's decision that there were no guilt phase errors, but affirmed the district court's decision with respect to the penalty phase.
The evidence overwhelmingly pointing to Payton's guilt and lengthy procedural background of his numerous appeals are also set forth in the California Supreme Court's, this court's, and the United States Supreme Court's previous opinions in this case. See, e.g. , People v. Payton , 3 Cal.4th 1050, 13 Cal.Rptr.2d 526, 839 P.2d 1035 (1992) ; Payton v. Woodford , 258 F.3d 905 (9th Cir. 2001) ; Payton v. Woodford , 346 F.3d 1204 (9th Cir. 2003) (en banc); Brown v. Payton , 544 U.S. 133, 125 S.Ct. 1432, 161 L.Ed.2d 334 (2005). A
On appeal to the Court of Appeals for the Ninth Circuit, a divided panel reversed. Payton v. Woodford, 258 F. 3d 905 (2001). The Court of Appeals granted Payton's petition for rehearing en banc and, by a 6-to-5 vote, affirmed the District Court's order granting habeas relief. Payton v. Woodford, 299 F. 3d 815 (2002).
The three-judge panel reversed on the factor (k) issue, and affirmed on Payton's claims that his counsel rendered ineffective assistance in failing to investigate and present evidence about his personal, family, and mental background and to pursue the background of a jailhouse informant during the penalty phase; that prosecutorial misconduct offended due process; and that he received inadequate funds to develop defenses and investigate informants. Payton v. Woodford, 258 F.3d 905, 922–25 (9th Cir.2001). The panel also rejected Payton's arguments that his counsel prejudicially failed to develop and present evidence of Post Traumatic Stress Disorder (PTSD) resulting from service in Vietnam, and that his sentence should be reversed for cumulative error.
A panel of the Court of Appeals cannot revisit a prior decision made by the court sitting en banc. Payton v. Woodford, 258 F.3d 905, 914 (9th Cir. 2001); see also Rand v. Rowland, 154 F.3d 952, 964 (9th Cir. 1998) (en banc) (Reinhardt, J., concurring) ("After all, overruling precedent is an important function that is expressly reserved to the en banc court, and a panel is ordinarily not free to do so."). McDowell II plainly holds that protective orders like the one issued in this case do not fall outside the bounds of the very broad discretion of the district courts, and that it is not clear error to deny a motion to reconsider such an order.
A prosecutor's misconduct violates a defendant's constitutional rights only if it "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Payton v. Woodford, 258 F.3d 905, ----, ----, slip op. 9709, 9720 (9th Cir.2001). Marston argues that three statements by the prosecutor constitute misconduct.
Because Doerr has not identified specific, legally relevant information counsel failed to obtain from him personally, he has not shown that counsel performed ineffectively by failing to meet and consult with him more frequently about mitigating evidence. See Payton v. Woodford, 258 F.3d 905, 922 (9th Cir. 2001) (finding counsel's performance was not ineffective where petitioner “points to nothing that would have happened differently had [counsel] and he spent more time together”), overruled on other grounds by Brown v. Payton, 544 U.S. 133 (2005). b. Mitigation specialist
Even if Petitioner could establish that Attorney Rodriguez' efforts to confer with him were deficient, Petitioner fails to show what benefit additional discussions would have afforded him. See Payton v. Woodford, 258 F.3d 905, 922 (9th Cir. 2001) (overruled on other grounds by Payton v. Woodford, 299 F.3d 815 (9th Cir. 2002) (holding that although the petitioner complained that his trial counsel conferred with him for only 8.1 hours, no prejudice was shown, as the petitioner "point[ed] to nothing that would have happened differently had [counsel] and he spent more time together"). Petitioner has failed to demonstrate that additional consultations would have spurred him to proceed to trial instead of pleading guilty.