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February 21, 1996

ARTHUR CALDERON, in his capacity as Warden of California State Prison at San Quentin, Respondent.

The opinion of the court was delivered by: LEGGE



 Petitioner James Richard Odle, a California prisoner under sentence of death, applied to this court for a writ of habeas corpus in 1988. In two prior orders, this court denied many of the claims raised in the petition. *fn1" See Odle v. Vasquez, 754 F. Supp. 749 (N.D. Cal. 1990); Odle v. Calderon, 884 F. Supp. 1404 (N.D. Cal. 1995). This court subsequently granted an evidentiary hearing on two of Odle's claims. This order addresses Odle's remaining claims. *fn2"


 The federal habeas corpus statute authorizes this court to review a state-court criminal conviction "only on the ground that [the petitioner] is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). The important -- but limited -- purpose of the writ of habeas corpus is to "protect[] individuals from unconstitutional convictions and . . . to guarantee the integrity of the criminal process by assuring that trials are fundamentally fair." O'Neal v. McAninch, 130 L. Ed. 2d 947, 115 S. Ct. 992, 997 (1995); see also Brecht v. Abrahamson, 507 U.S. 619, 113 S. Ct. 1710, 1719, 123 L. Ed. 2d 353 (1993). Even in this limited role, federal habeas review delays finality and burdens not only state and federal resources but also state--federal relations. See, e.g., Brecht, 113 S. Ct. at 1720-22; McCleskey v. Zant, 499 U.S. 467, 490-91, 113 L. Ed. 2d 517, 111 S. Ct. 1454 (1991); Sumner v. Mata, 449 U.S. 539, 550, 66 L. Ed. 2d 722, 101 S. Ct. 764 (1981). Habeas doctrines and procedures thus balance the protection the writ offers from unlawful custody against "the presumption of finality and legality" (see Brecht, 113 S. Ct. at 1719) that attaches to a state-court conviction after direct review.

 To this end, a federal habeas court must in most cases accord a presumption of correctness to state-court findings of fact. 28 U.S.C. § 2254(d). Also, the burden in generally on the habeas petitioner to prove, by a preponderance of the evidence, the facts necessary to support the claim. See, e.g., Garlotte v. Fordice, 132 L. Ed. 2d 36, 115 S. Ct. 1948, 1952 (1995); Sumner, 449 U.S. at 551; McKenzie v. McCormick, 27 F.3d 1415, 1419 (9th Cir. 1994). And a federal court need not set aside a state conviction or sentence for every constitutional violation. In most cases, habeas relief will be granted only if the error was either "structural" or "had substantial and injurious effect or influence in determining the jury's verdict." See Sullivan v. Louisiana, 508 U.S. 275, 113 S. Ct. 2078, 2082-83, 124 L. Ed. 2d 182 (1993); Brecht, 113 S. Ct. at 1717, 1722.

 With these principles in mind, this court addresses the merits of Odle's remaining claims.


 Claim G

 Odle claims that he was denied the effective assistance of trial counsel because counsel did not provide mitigating expert testimony at the penalty trial. This court denied this claim in its 1990 order. See Odle, 754 F. Supp. at 772-74. Odle then moved for reconsideration of the court's decision on this claim.

 The court has reviewed this claim, its prior order, the cases cited by Odle and more recent Ninth Circuit cases on ineffective assistance of counsel. See, e.g., Hendricks v. Calderon, 70 F.3d 1032 (9th Cir. 1995); Bonin v. Calderon, 59 F.3d 815 (9th Cir. 1995); Williams v. Calderon, 52 F.3d 1465 (9th Cir. 1995). As this court noted in its prior order, however, "mere citation of cases only goes so far." Odle, 754 F. Supp. at 773.

 On the record in this case, trial counsel's preparation and presentation of the mental-state evidence was not constitutionally deficient. The investigation that Odle's counsel conducted of Odle's mental condition is discussed at pages 20 and 30-31, below. At the guilt trial, Odle's counsel presented extensive expert testimony about Odle's brain injury and its aftermath. At the penalty trial, he clearly understood -- and told the jury -- that the mental state mitigating factors require "a completely different consideration than what [the jury] had to decide in the guilt phase." 29 RT 63-64. The thrust of his entire penalty-trial argument was that Odle should be deemed less culpable for the offenses and the jury should show mercy on account of his brain injury. See generally 29 RT 67-86. As trial counsel emphasized to the jury, this argument was supported by the guilt-trial expert and lay testimony.

 Where mitigating evidence is presented at the guilt trial and the jury is instructed to consider it at the penalty trial, trial counsel is not necessarily ineffective for not presenting additional evidence at the penalty trial. See Williams, 52 F.3d at 1471. Here, as in Williams, trial counsel could have presented more expert testimony about the mitigating factors. Given the presentation at the guilt trial, however, this court cannot say that trial counsel's failure to do so was objectively unreasonable. The guilt trial focused on Odle's mental state and his diminished capacity as a result of his lobectomy. At the guilt trial, Odle's attorney presented the testimony of Dr. Blum, the neurosurgeon who operated on Odle, neurologist Dr. Holtz, and psychiatrist Dr. Thompson. The issue of Odle's mental state was squarely presented to the jury, and it rejected the experts' conclusions.

 For the reasons set forth here and in its 1990 order, this court DENIES Odle's renewed claim of ineffective assistance of counsel for failure to present expert mitigating evidence. See Odle, 754 F. Supp. at 773-74.

 Claim J

 Odle claims that the trial court had a sua sponte duty to hold a hearing to determine his competency to stand trial. Respondent answers that the trial court had no such duty because it had no reason to doubt Odle's competency.

 A defendant is incompetent to stand trial if he lacks "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding -- and a rational as well as factual understanding of the proceedings against him. Dusky v. United States, 362 U.S. 402, 4 L. Ed. 2d 824, 80 S. Ct. 788 (1960); Hernandez v. Ylst, 930 F.2d 714, 716 n.2 (9th Cir. 1991). The prosecution of a defendant incompetent to stand trial violates due process. See Godinez v. Moran, 509 U.S. 389, 113 S. Ct. 2680, 2685, 125 L. Ed. 2d 321 (1993); Pate v. Robinson, 383 U.S. 375, 378, 15 L. Ed. 2d 815, 86 S. Ct. 836 (1966). Therefore, a trial court must hold a competency hearing if it has or should have a good faith or bona fide doubt about a defendant's competency. See Pate, 383 U.S. at 378, 385; Blazak v. Ricketts, 1 F.3d 891, 894 (9th Cir. 1993); see also Moran v. Godinez, 57 F.3d 690, 695 (9th Cir. 1994) (trial court must hold hearing before allowing defendant to waive constitutional rights if it doubts defendant's competency).

 Here, the trial court had before it, directly and indirectly, information about Odle's psychiatric problems. At a pre-trial hearing, a psychiatrist testified that he had diagnosed Odle five years earlier as having psychosis with organic brain syndrome and prescribed anti-psychotic medication. 1B RT 8, 11. *fn3" Jail records ordered by the trial court reflect that Odle had set fire to his cell and was deemed suicidal less than a year before trial Ex. 4. *fn4" County records ordered by the trial court also document "several suicide gestures and one serious attempt." Ex. 1. Medical records admitted into evidence reflect that Odle was committed to an institution for psychiatric reasons at least three times in the ten years before the trial. Ex. 2. At both the guilt and penalty trials, lay and expert witnesses testified about his unusual post-accident behavior. See, e.g., 20 RT 28-36 (Dr. Blum); 20 RT 93, 102 (Glenda Odle); 28 RT 15-17 (Michael Odle).

 This information is relevant to the issue of whether the trial court should have had a good-faith doubt about Odle's competency to stand trial. This court notes, however, that most of the information related to events at least eight years before the trial; it thus carries less weight than would more contemporaneous information. Cf. Moran, 57 F.3d at 696 (information from the time of trial increases the accuracy of retrospective competency evaluations). Also, the various mentalhealth evaluations reach inconsistent conclusions about Odle's ability to cooperate and whether he presented a genuine suicide risk.

 However, Odle's demeanor at trial was apparently unexceptional. See Pate, 383 U.S. at 386. Odle's trial counsel did not seek a competency hearing. See Blazak, 1 F.3d at 895. Further, in light of the Dusky standard, this court deems it highly significant that none of the participants in Odle's trial questioned his competency, even though they had the opportunity to observe him over the course of two years of pre-trial proceedings and 28 days of trial. See Hernandez, 930 F.2d at 718.

 In this case, where the defense on the merits was diminished capacity, every piece of evidence that supports the defense is arguably another reason why the trial court should have halted the trial and held a competency hearing. In some diminished-capacity cases, it may be necessary to do so. Here, however, the information before the trial court relevant to Odle's competency was, for the most part, remote and inconclusive. More importantly, neither Odle's conduct nor trial counsel identified competency as an issue.

 This court concludes that, on the record in this case, a reasonable trial judge would not have had a substantial doubt about Odle's competency to stand trial. Odle's claim that the trial court violated due process by failing to hold a sua sponte competency hearing is therefore DENIED.

 Claims K and L

 Respondent argues that Odle's declarations do not support his claim that he was actually incompetent to stand trial. He also challenges the declarations of Drs. Riley and Merikangas as biased.

 This court applies to these claims the Dusky standard, discussed above: A defendant is incompetent if he lacks "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding -- and a rational as well as factual understanding of the proceedings against him." Dusky, 362 U.S. at 402. This standard applies to retrospective determinations of competency on federal habeas review. See Hernandez, 930 F.2d at 716. It also applies to determinations about whether a defendant is Competent to waive certain rights. See Godinez, 113 S. Ct. at 2686. A habeas petitioner is entitled to an evidentiary hearing on the issue of his competency to stand trial "if he presents sufficient facts to create a real and substantial doubt as to his competency." Boag v. Raines, 769 F.2d 1341, 1343 (9th Cir. 1985).

 Much of the discussion relating to Claim J, above, applies to Claims K and L as well. This court emphasizes again that none of the participants in Odle's trial questioned his ability to understand the proceedings or to communicate with his counsel at the time. See Hernandez, 930 F.2d at 718 ("significant" that no one at trial questioned defendant's competency). In fact, trial counsel's declaration states that Odle was "an extremely cooperative and likable client who acquiesced in virtually all decisions that I made on his behalf." Ex. 34 at 5. These facts, and the lack of contemporaneous evidence that Odle was incompetent to stand trial, are accorded considerable weight. See Moran, 57 F.3d at 696.

 In the context of actual-incompetency claims, however, this court must also consider facts not presented to the trial court. See Boag, 769 F.2d at 1343. Much of the evidence that Odle now identifies as indicative of his incompetency arose either many years before trial or many years after it. Odle's brain injury and subsequent institutionalizations date from the mid-1970s. See Boag, 769 F.2d at 1343 (discounting suicide attempts that occurred long before trial). The expert declarations, by contrast, were based on interviews conducted almost ten years after the trial. The declarations from those around Odle at the time of his trial -- counsel, a defense investigator and the two county jail inmates -- do not lead this court to doubt that Odle had a rational understanding of the proceedings against him.

 For the reasons discussed above, Odle is not entitled to an evidentiary hearing, or habeas relief, on these claims. The facts he has presented do not create a real and substantial doubt about his competency. And assuming the truth of his declarations, Odle has not convinced this court by a preponderance of the evidence that he was actually incompetent to stand trial or waive his right to be present. *fn5" See McKenzie, 27 F.3d at 1418-19. For these reasons, Claims K and L are DENIED.

 Claims M and N

 Odle also argues that newly discovered mitigation evidence demonstrates his "actual innocence" of the death penalty (Claim N). He supports this claim with the declarations described above and with other declarations from family members and friends.

 It is important to note that this is a substantive claim of actual innocence. His claim is therefore reviewed under the standard of Herrera v. Collins, 506 U.S. 390, 122 L. Ed. 2d 203, 113 S. Ct. 853 (1993), rather than the more lenient standard applied to a "procedural" claim of actual innocence offered to obtain federal habeas review of an independent constitutional claim that would otherwise be barred. See Schlup v. Delo, 130 L. Ed. 2d 808, 115 S. Ct. 851, 860-61 (1995); Herrera, 506 U.S. at 404.

 The precise nature of the showing that a petitioner must make to obtain federal habeas review of a substantive claim of actual innocence is not clear. Herrera suggests, however, that "the threshold showing . . . would necessarily be extraordinarily high." Herrera, 506 U.S. at 417; see also Swan v. Peterson, 6 F.3d 1373, 1384 (9th Cir. 1993) (newly discovered evidence is grounds for federal habeas relief only if would probably lead to acquittal).

 Odle's allegations in support of Claims M and N do not rise to the requisite level of persuasiveness. Even assuming their truth, Odle's allegations in support of this claim do not amount to "a truly persuasive demonstration of actual innocence under any reasonable standard." Schlup, 115 S. Ct. at 861 n.32 (internal quotations omitted). Both actual-innocence claims are therefore DENIED. *fn7"

 Claims O, P, Q, and S

 Odle raises four related claims about the conduct and competency of his pre-trial counsel, Patrick Meistrell. After a summary of the relevant facts, this order addresses each claim in turn.

 1. Background

 Odle's first attorney in the murder case against him was Patrick Meistrell, of the Contra Costa County Public Defender's Office. Before representing Odle, Meistrell had been on medical leave. He also had been involuntarily committed for a mental disability from mid-1977 to early 1978. Exs. 14-17, 20-24. The public defender's office was aware of Meistrell's mental illness in 1977. Ex. 14. At least two attorneys recognized a connection between Meistrell's breakdown and a complex homicide case he was handling at the time. Ex. 23 at 3-4, 8. In late 1977, Meistrell's doctor opined that Meistrell would be able "to fulfill any of the obligations and functions of attorney [sic] with the Public Defender's Office" by July 1978. Ex. 17 at 1. But attorneys in the office had doubts about whether he should be assigned another capital case. Ex. 23 at 5.

 Meistrell nonetheless was assigned to represent Odle in 1980 and served an his counsel for approximately one year. During that time, he handled Odle's preliminary hearing and motions for discovery, suppression of evidence, severance, dismissal and change of venue. CT *fn8" 1-1143. From late 1980 until March 1981, Meistrell worked exclusively on Odle's case. Ex. 23 at 12, 14. During this time, he was on sabbatical from the public defender's office and also ending a live-in relationship. Ex. 23 at 5, 10, 14. At some point, the public defender's office recruited William Lowe to assist Meistrell with his work on Odle's case. *fn9"

 In January 1981, Meistrell began to experience manic feelings, similar to those he remembered from his 1977 illness. Ex. 23 at 16. Co-workers and friends noticed the recurrence of similar symptoms in late 1980 or early 1981. Ex. 23 at 6, 9, 10, 12. Meistrell had stopped taking lithium in early 1978, but he started again in March 1981. Ex. 19 at 1; Ex. 23 at 16.

 Meistrell learned on March 20, 1981, that Odle's pre-trial writs had been denied. Ex. 23 at 15. He apparently took a street drug around this time and stayed awake for two days. Ex. 19 at 2; Ex. 23 at 14.

 Around March 23, while he was still representing Odle, Meistrell was placed on medical leave by the public defender's office because of an unspecified incident. Ex. 18. He was committed at that time. *fn10" Ex. 23 at 15. In mid-April of 1981, he was diagnosed as suffering from manic depressive disorder, manic phase, and possible amphetamine psychosis. Ex. 19 at 2, 4. Meistrell's examining doctor concluded at that time that he was unfit to work, near-delusional and almost paranoid. Id. at 4-5.

 On May 5, Meistrell resigned from the public defender's office, effective at noon. He nonetheless appeared in court for Odle at 11:00 a.m., introducing into evidence his own personnel file and letter of resignation. Meistrell maintained that he was still Odle's attorney. 5/5/81 RT 24. His comments in court were disjointed and random. This was Meistrell's last appearance as Odle's counsel.

 At the end of March, the public defender's office filed an affidavit of conflict, seeking permission from the trial court to withdraw from the case for unspecified reasons. IV CT 1139. The court held a hearing to determine whether the affidavit stated good cause for the office to withdraw. *fn11" An attorney from that office told the judge that Meistrell was ill and if another attorney were assigned to the case, "it would present serious problems when Mr. Meistrell returns to work." 3/31/81 RT 3. The public defender's office also offered in camera statements and a confidential memorandum of points and authorities in support of the affidavit. 4/9/81 RT at 9-10. The court did not find good cause for the affidavit of conflict and denied the office's request to withdraw. Id. at 17.

 A month later, the office filed another affidavit seeking to withdraw from the case. This affidavit stated that the office could not represent Odle because it had a conflict of interest. 5/8/81 RT 32. The court accepted this affidavit on its face and permitted the office to withdraw. Id.

 Later in May 1981, the court appointed William Gagen as Odle's new counsel. Gagen had represented Meistrell approximately four years earlier in proceedings, ultimately unsuccessful, to obtain his release from involuntary commitment. Exs. 20, 22. Gagen was appointed as counsel for Odle in part, as Gagen understood it, because his prior relationship with Meistrell and his geographical distance from the public defender's office would likely minimize Meistrell's interference with the case. 5/22/91 RT; Ex. 34 at 2. William Lowe continued to work as co-counsel. 5/22/81 RT 43; V CT 1521.

 Gagen and Lowe then worked on Odle's case for two years before trial. After numerous pre-trial motions, jury selection began on June 6, 1983. 3A RT 8.

 2. Claim O

 Odle claims that he was denied his Sixth Amendment right to counsel because Meistrell was incompetent. Odle argues that Meistrell's mental illness prevented him from adequately representing Odle during motions to: dismiss the charges and the special circumstances, change venue, sever counts, and suppress evidence. Odle also alleges that Meistrell failed effectively to investigate, prepare and present issues, including: Odle's competence to stand trial, the diminished capacity and intoxication defenses, and his ability to waive his constitutional rights.

 A criminal defendant is entitled to the effective assistance of counsel during critical pre-trial proceedings. Powell v. Alabama, 287 U.S. 45, 57, 77 L. Ed. 158, 53 S. Ct. 55 (1932); United States v. Wade, 388 U.S. 218, 227, 18 L. Ed. 2d 1149, 87 S. Ct. 1926 (1967); cf. United States v. Martini, 31 F.3d 781, 782 (9th Cir. 1994) (right applies to "counsel who represents the criminal defendant and helps to prepare his defense").

 An attorney who is mentally ill is not per se ineffective. See Smith v. Ylst, 826 F.2d 872, 876 (9th Cir. 1987). Rather, a reviewing court must review the attorney's actual performance. "If a mental illness or defect indeed has some impact on the attorney's professional judgment it should be manifested in his courtroom behavior and conduct of the trial." Id. Thus, the Strickland test for ineffective assistance of counsel applies to claims that counsel was incompetent because of mental illness. Id. at 875.

 Under Strickland, a petitioner must show 1) specific ways in which counsel's performance fell below an objective standard of reasonableness and 2) a reasonable probability that, but for counsel's errors, the jury would have reached a different verdict. See Strickland v. Washington, 466 U.S. 668, 688, 694, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). This court must review counsel's performance deferentially, applying a strong presumption that it was within the wide range of competence. Id. at 689.

 Odle does not point to any specific inadequacy in, or prejudice from, Meistrell's handling of Odle's pre-trial proceedings. From this court's review of the record, it appears that Meistrell adequately represented Odle at the preliminary hearing and adequately investigated, prepared for and presented pre-trial motions. For example, Meistrell appropriately objected to the testimony of and cross-examined prosecution witnesses and called witnesses for the defense at the preliminary hearing and the suppression hearing. He gathered and presented extensive evidence of media coverage in support of his motion for a change of venue. The record demonstrates that he argued the motions extensively and coherently. As a result, the trial judge dismissed a robbery count and severed a count alleging possession with intent to make an explosive device. IV CT 1042; II RT 330.

 It is undisputed that Meistrell suffered serious mental breakdowns in 1977 and 1981. But aside from Meistrell's last appearance as Odle's counsel, this court has not found any indication that Meistrell's illness affected his in-court representation of Odle.

 Odle also argues that Meistrell was ineffective for failing adequately to develop evidence on ballistics and on Odle's physical and mental condition at the time of the offense. With respect to the ballistics evidence, Odle has not indicated what investigation Meistrell should have done but did not do. Nor has he indicated what helpful evidence could have been found had Meistrell properly investigated. See Hendricks, 70 F.3d at 1042.

 The bullet that killed police officer Swartz was never found. 19 RT 123. At trial, Gagen was able to cross-examine vigorously the criminalist who testified about the source and direction of the bullet, suggesting that it could have come from the weapon of another officer. 19 RT 105-25. Although he later conceded that Odle's bullet killed Swartz, *fn12" Gagen used the ballistics testimony to argue that the murder was not premeditated. 23 RT 54, 61, 63-65. Odle has not indicated how he suffered prejudice from Meistrell's alleged failure to investigate the ballistics evidence; after reviewing the record, this court finds none.

 This court assesses below the reasonableness of Gagen's conduct and explanation. For purposes of this claim, however, this court notes that Meistrell's alleged failure to have Odle properly examined near the time of the offense has not prevented mental-health experts who examined Odle some ten years later from forming opinions about his mental state at the time of the offense. Cf. Evans v. Lewis, 855 F.2d 631, 637-38 (9th Cir. 1988) (prejudice from counsel's failure to conduct prompt psychiatric testing where psychiatrist testifying later could not give opinion with a reasonable degree of medical certainty about defendant's mental state). In declarations before this court, two experts state that Odle could not have formed the requisite intent for first-degree murder, was unable to appreciate the ...

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