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Fairbank v. Ayers

July 22, 2008


The opinion of the court was delivered by: Charles R. Breyer United States District Judge



(Docket No. 129)

This habeas petition arises from Robert Green Fairbank's guilty plea and sentence to death for the 1985 murder of Wendy Cheek in San Francisco, California. Now pending for decision is Respondent's Motion for Summary Judgment on all of the Petition's claims. The Court conducted oral argument on the following claims: (1) Claim 1 subclaim that defense counsel were constitutionally ineffective by presenting allegedly erroneous expert testimony that Petitioner had an antisocial personality disorder and that Petitioner had no mental illness or neurological damage; and (2) Claim 12, prosecutorial misconduct by eliciting testimony about a racial slur. For the reasons discussed below, Respondent's Motion is granted.


The following recitation of facts is based primarily on the Supreme Court of California's opinion disposing of Petitioner's direct appeal, People v. Fairbank, 16 Cal. 4th 1223 (1997), as modified on denial of reh'g (Feb. 18, 1998). The state court's factual determinations are presumed to be correct pursuant to 28 U.S.C. § 2254(e)(1), and are confirmed by the Court's own independent review of the record. See Earp v. Ornoski, 431 F.3d 1158, 1165 n.3 (9th Cir. 2005). The information filed April 25, 1986 charged Petitioner with first degree murder and alleged that he committed the murder while attempting to commit rape and unlawful oral copulation. The information further alleged infliction of torture and use of a deadly weapon and that Petitioner had two prior felony convictions, which Petitioner admitted before trial.

I. Guilt Phase

Testimony in the trial's guilt phase began on the afternoon of March 21, 1989. John Adkins, a friend of Wendy Cheek, testified that on the morning of December 12, 1985, Cheek told him that she planned to attend a party at his apartment that evening. Adkins lived on Ashbury Street in San Francisco, not far from where Cheek lived. Adkins did not attend the party himself, but was told that Cheek did not appear at the party. One week later Adkins received a phone call from Cheek's mother, who was worried because the family had not heard from her. Adkins searched for Cheek and found her car parked near his house on the 900 block of Clayton Street.

A witness testified that on December 14, 1985, he found a body in a grove of trees near highway 280 in San Mateo County. The responding highway patrolman testified that the body was naked, had numerous stab wounds, and was partially burned. An assistant coroner testified that fingerprints identified the body as Cheek. Officer Dirickson, a police detective who investigated the scene, testified that automobile parts had been placed over the body in an apparent attempt at concealment. A forensic criminalist testified that he collected plant samples from the scene to test for accelerants and detected the presence of gasoline.

After the prosecution presented the above evidence Petitioner pleaded guilty to first degree murder and admitted the special circumstances of attempted oral copulation and torture, and the special allegation of personally using a deadly or dangerous weapon. Petitioner did not admit the attempted rape special circumstance, which the court dismissed at the prosecution's request.

II. Penalty Phase

A. Prosecution Evidence

The penalty phase of Petitioner's trial began on April 4, 1989. The pathologist who conducted the autopsy on Cheek's body testified that Cheek had been burned extensively with gasoline but had died before being set on fire. A number of blunt injuries on Cheek's head and torso were consistent with blows from a fist. Multiple puncture wounds on the back of her head and neck appeared to be from a Phillips screwdriver. Other puncture wounds were consistent with stabbing by a barbeque fork. Stab wounds in her neck and upper back appeared to be from a knife. Two stab wounds, four and one-half to five inches deep, pierced Cheek's right lung and aorta, causing massive bleeding and death within a few minutes. Cheek had blood under her fingernails, suggesting she had scratched someone shortly before she died. A criminalist testified that he tested the fingernail scrapings and determined that the blood was the same ABO blood type as Petitioner's and Cheek's, but could not further narrow down the source. Phyllis Marie Kitchell Fairbank (Kitchell) lived with Petitioner at 953 Clayton Street, close to where Cheek's car was located at 977 Clayton Street. Kitchell testified that Petitioner often abused her physically, causing her to seek medical treatment. Kitchell was hospitalized in early December 1985. On the evening of December 12, the day Cheek disappeared, Petitioner visited Kitchell in the hospital; Petitioner was upset and had fresh scratches on his face and reported that two other people had involved him in a murder. The murder had taken place "up in the hills, in woods," but he did not admit personal involvement in the killing. The next day, Petitioner picked Kitchell up at the hospital. Petitioner drove Kitchell's car, to which he had access while she was hospitalized. After meeting Kitchell, Petitioner retrieved laundry from a laundromat, including bedding that he and Kitchell normally cleaned at home. When Kitchell arrived home, she discovered that a steamer trunk was missing. A car wash owner later found a bloodstained steamer trunk, matching the missing one, abandoned at a San Francisco car wash. The criminalist who examined the blood found in the steamer trunk testified that it was consistent with Cheek's blood type.

On the evening of December 14, 1985, Petitioner physically abused Kitchell, punching and kicking her repeatedly. Kitchell called the police, claiming to have overdosed, and was taken to the hospital by ambulance. A responding police officer testified that Petitioner had scratches on his face and neck. Petitioner blamed Kitchell for the scratches, but the officer noticed that they were not freshly made because they were not bleeding and were starting to scab. The next day, Kitchell told a therapist at the hospital that she was not suicidal and had not overdosed. She called the police from the hospital and explained what had happened the previous night. Petitioner was arrested, and Kitchell returned home to the apartment. Within a couple of days, Kitchell noticed that a rug from the front room had been moved to the bedroom. When Kitchell moved the rug, she noticed that it covered a large hole in the carpet. Sometime later Kitchell also noticed that screwdrivers were missing from her dresser drawer and that her red bodysuit had blood on the front and was stretched. Kitchell's sister, Toni Stracener, testified that she stayed for a few months at Petitioner's and Kitchell's apartment after Kitchell returned home from the hospital in December 1985. On December 16, Petitioner called Stracener and told her part of the carpet was missing because the cats had soiled it; he asked Stracener to replace the missing carpet, and she told him that she would do so.

Detective Mike Dirickson testified that he visited Petitioner's apartment at 953 Clayton Street on December 27, 1985. Kitchell was speaking with Petitioner on the telephone when Dirickson arrived. Petitioner advised Kitchell not to allow the police into the apartment, but she had already done so. Petitioner also directed Kitchell to get rid of his jeans, which she instead gave to the police along with her blood-stained bodysuit. While Dirickson was at the apartment, Petitioner also spoke with Stracener by telephone. Stracener told Petitioner that the police were there, and he asked her if she had replaced the missing carpet in the bedroom. Kitchell showed the police the torn carpet hidden under a throw rug in the bedroom. Dirickson observed blood along the edges of the carpet and blood spatters on the bed frame. Dirickson also examined Kitchell's car and found a flashlight with blood smeared on the handle and a Phillips screwdriver.

Dirickson returned to the apartment the next day with a criminalist from the county forensic laboratory. The criminalist found blood on a wall above the bed, on a table adjacent to the bed, in the living room, and on the back door. He also discovered a large amount of blood on the underside of the mattress, which appeared to have been flipped over. Genetic marker testing indicated that the blood on the carpet and mattress matched Cheek's blood.

The criminalist opined that only one in 66,000 people had the markers detected by the nine testing systems he used with results, and he was able to eliminate Petitioner and Kitchell as the source. He also detected blood in the hatchback of Kitchell's car, and testified that ABO testing determined that the Type A blood there matched Cheek's blood type. Finally, the criminalist examined the blood on Kitchell's red bodysuit; it was consistent with Cheek's, but not Kitchell's, blood type.

The criminalist returned to the apartment on January 2, 1986, and conducted luminol testing to detect blood that was not otherwise visible. The testing revealed footprints leading from the bedroom to other parts of the apartment. After comparing the footprints to sample footprints he had taken from Petitioner, the criminalist could not exclude Petitioner as the source and testified that every measurement of the footprints matched Petitioner's footprints. The criminalist also tested a skirt and sweater that were found in May or June 1986 off interstate highway 280, a number of miles north of where Cheek's body was discovered in December 1985. He compared the clothing to a button and clothing label that were found in the area where the body was located, and opined that those items found near Cheek's body were once part of the skirt, based on an examination of the threads and on a matching jacket that Cheek's mother provided to the laboratory. The criminalist tested the clothing for blood, but was not able to obtain a sufficient sample. John Szymkiewicz testified that he became acquainted with Petitioner while occupying a jail cell near Petitioner's in the spring of 1986. Szymkiewicz was facing robbery, assault, and false imprisonment charges, and he admitted that he had cooperated with police in return for a reduction of his own sentence from 22 or more years to 10 years.

While in jail, Petitioner approached Szymkiewicz about having "a girl named Phyllis" hurt "because she was a snitch testifying against him." Petitioner spoke to Szymkiewicz and also passed him notes. One note read: I want Phyllis & her snitch ass sister beat on some & scared to living hell, then smash in 25" color TV, smash computer, & anything else of value!!! I want the car totaled! I imagine the car can be done first or whatever these dudes decide. One of many reasons I want it done is to keep them from testifying against me next week!!"

In another note, Petitioner indicated he wanted Kitchell's leg or arms broken and wrote, "I for sure want this done & NO I won't change my mind!!" According to Szymkiewicz, he and Petitioner discussed payment. Kitchell testified that Petitioner called and threatened her before and after his preliminary hearing, telling her that "other people" would break her arms and legs if she testified against him. Stracener also testified that Petitioner called and threatened her about a month after she testified at a preliminary hearing.

Arlene Gemmil, who lived near Petitioner's apartment, testified that on December 5, 1985, a week before Cheek's disappearance, she parked on the 900 block of Clayton Street and stopped to pet a cat as she walked home. Petitioner invited her to look at the cat's kittens. Once she was in the bedroom of his apartment, he admitted that he did not have kittens. As Gemmil attempted to leave, Petitioner asked her if she wanted to make money modeling lingerie. Gemmil was still trying to leave the apartment, getting within inches of the front door, when Petitioner grabbed her from behind and hit her on the left side of her face. Petitioner hit her in the sternum, knocking the wind out of her, before forcing her to orally copulate him. She tried to escape by winning his trust, but did not succeed. Petitioner forced her to orally copulate him several more times. He also penetrated her vagina and anus with his finger and asked her to remove her clothing and put on a red bodysuit. Forcing Gemmil to hold his arm, Petitioner used a hypodermic needle to push an empty syringe into his arm, drawing out brownish liquid and injecting it back into his arm. He continually asked Gemmil if she wanted cocaine, though she did not see any drugs there. He made numerous telephone calls, apparently in an attempt to purchase drugs, and to listen to pornographic recordings, which he also made Gemmil hear. She testified that during the approximately two hours she was in Petitioner's apartment, he appeared to be in control of the situation and was not hitting or injuring himself. Petitioner subsequently apologized to Gemmil for hitting her and said he wanted to take her out to dinner. Petitioner permitted her to put her clothes back on, and they left the apartment together. When someone in a car passed close enough to hear Gemmil scream, she walked away from Petitioner, who did not follow. Gemmil went home and was taken to a hospital. She testified that she had not scratched Petitioner. Dr. Deborah Heath, who had frequent contact with drug users, testified that drug users who want drugs sometimes insert a previously used hypodermic needle into a vein, draw out blood, and then inject the blood back into the vein. Reusing needles had a placebo effect because the psychological association of putting the needle back into their vein would stimulate the prior association with injecting drugs. Dr. Heath also testified that some drug users believe the residue in the used syringe and needle will be enough to make them high. Jennifer Roth testified that in October 1979 she lived with Petitioner on Irving Street in San Francisco. When Petitioner suspected her of having a relationship with another man, Petitioner tore up the bedroom, hit Roth, put a bullet in a pistol, spun the cartridge, put the barrel of the pistol to Roth's head, and pulled the trigger. Roth called the police; Petitioner was arrested and imprisoned at the California Rehabilitation Center.

The prosecution also presented evidence indicating that on December 5, 1985, the day of the Gemmil sexual assault, and again on December 12, the day Cheek disappeared, a series of telephone calls were made from Petitioner's apartment to a telephone number that connected to a pornographic recording. Detective Dirickson examined telephone records and testified that four calls were made on December 5, and seven calls were made on December 12, to the same 976 telephone number. The prosecution also presented documentary evidence of prior convictions for second degree burglary, receiving stolen property, battery with serious bodily injury, and felon in possession of a weapon.

B. Defense Evidence

On cross-examination Kitchell testified that she met Petitioner when he was in the hospital receiving psychiatric treatment, spending a "wonderful" Christmas together. They both liked camping, walking, going to the beach, and going to movies. They discussed having a family, owning a home, and possibly starting a business. Kitchell also described how cocaine use affected Petitioner's personality, causing paranoia, self-mutilation and explosive outbursts of rage. The defense elicited testimony from Roth on cross-examination that around the time Petitioner assaulted her with a pistol, his personality changed because of heavier drug use: he lost weight, had marks on his arms, became angry and paranoid, and abused himself. Roth noticed a positive change in Petitioner after he was treated for drug use, returning to the "original self" whom she knew, but after his release, he used cocaine and returned to his abusive ways. Roth also testified that Petitioner rarely worked, that his mother helped support him, and that "he knew that he could get whatever he wanted from her." Roth knew Petitioner's mother in 1979 and saw signs that she was an alcoholic. Petitioner's mother died while he was imprisoned, after which he received money from a trust fund that she established for his benefit.

Dr. H. Westley Clark testified about the effects of Petitioner's longtime substance abuse. Dr. Clark reviewed Petitioner's medical and hospital records from 1981 to 1985, and testified that the primary reasons for Petitioner's hospitalizations were cocaine dependency, alcohol abuse and marijuana abuse. He also testified that Petitioner's efforts to obtain prescriptions for various tranquilizers on December 3, 4 and 11, 1985, reportedly to treat pain caused by an auto accident for which Kitchell was being hospitalized, were consistent with the effects of cocaine dependency. Dr. Clark concluded that Petitioner's "chemical dependency was quite severe." The defense also presented evidence relating to Petitioner's childhood. Petitioner was born in 1952. His father, Robert Fairbank, Sr., testified that Petitioner grew up in a "very nice" neighborhood of a small resort community on the Connecticut coast. The family moved in with Petitioner's maternal grandfather. Mr. Fairbank testified that his father-in-law's financial support and interference in household affairs caused constant tension in his marriage. Mr. Fairbank acknowledged that he and Petitioner's mother drank often, and he characterized her as a heavy drinker. During one argument, after they had both been drinking, Petitioner's mother spit in Mr. Fairbank's face. He then hit her, and she fell through a glass door when she tried to retaliate. Mr. Fairbank denied hitting Petitioner, but other witnesses who knew the family testified that he often hit Petitioner, who was afraid of his father. As Petitioner grew older, he had a few minor brushes with the law, and two private schools expelled him. According to Mr. Fairbank, Petitioner's mother and maternal grandfather spoiled him with presents whenever he did something wrong. On one occasion, his mother bought him a boat after police arrested him. In 1968, when Petitioner was 16 years old, he had a fight with his father, breaking his father's rib. Petitioner's parents were divorced a short time later. After spending some time in reform school, Petitioner moved to California with his mother at about age 18.

The defense called several witnesses who knew Petitioner and his family when he was growing up. Though he was raised in an affluent community, one witness described Petitioner's upbringing as "dreadful," and another witness described it as "perfectly awful." Friends of Petitioner's mother described his father as a "nasty, sarcastic, abusive," and "frustrated, mean-spirited" person who verbally abused Petitioner's mother. His father also yelled at and humiliated Petitioner, who feared his father, and his mother was passive, doing nothing to intervene. One childhood friend described an occasion when Petitioner's father struck Petitioner in the face without provocation. This type of abuse was "common knowledge" in the community. Each of these witnesses expressed that he or she thought it was important for the jury to understand how Petitioner was treated as a child. Petitioner enjoyed performing dangerous stunts and had a reputation in the community as a "bad boy." He stole money from a neighbor's house, and he and a friend frequently broke into summer houses. He repeatedly beat up this friend to show off to other friends. Despite this misbehavior, Petitioner's mother would make excuses for him and spoil him with "all sorts of material things." His grandfather would also spoil him and bail him out of trouble. Dr. Alfred Fricke, a clinical psychologist, performed research on Petitioner and his background and testified about Petitioner's psychological makeup. Having interviewed about a dozen people in Connecticut and reviewed police reports, trial testimony transcripts and medical records, Dr. Fricke described Petitioner as a hyperactive child, "a difficult kid . . . born into . . . a family ca[u]ldron." He grew up with an "abusive, angry dad" who at some point "gave up on him, and the kid could do no right." Dr. Fricke opined that Petitioner's father had low self-esteem and felt emasculated because he could not provide for his family independently. He had high expectations for his son. Dr. Fricke considered it significant that, while Petitioner's father abused him, his mother spoiled him but did nothing to stop his father's abuse. This type of background "sets up the pattern for a man to later on develop the kind of [abusive] relationships that he has as an adult." Dr. Fricke concluded that the conflicting signals from his parents prevented Petitioner from developing a conscience.

Dr. Fricke also administered six psychological tests on Petitioner, and referred him to a neuropsychological specialist for further tests. The tests did not reveal that Petitioner suffered from any psychosis or mental illness, and on one test Dr. Fricke observed that Petitioner was faking his answers to appear more disturbed. State Rec. 29 (Reporter's Transcript on Appeal) at 3521. Dr. Fricke concluded that Petitioner had an antisocial personality disorder and suffered from drug addiction. He testified that in comparison to a mental disorder of psychosis, cocaine psychosis is short-lived, triggered by effects of the drug, when a person is out of touch with reality. State Rec. 29 at 3526. While Petitioner's drug addiction exacerbated his antisocial behavior, Dr. Fricke testified that Petitioner would still suffer from the antisocial personality disorder without the drugs, just "not as bad." The drugs made Petitioner unpredictable, irrational and paranoid. Nevertheless, according to Dr. Fricke, he is "fully responsible for his behavior and his life." Petitioner is capable of realizing that his various acts of theft, assault, and murder are wrong; he simply does not care about the consequences of his actions. Dr. Fricke suggested that Petitioner would respond well to the structured environment of prison. On cross-examination Dr. Fricke testified that Petitioner did not remain for long in the drug programs in which he was enrolled at various hospitals after release from prison.

C. Closing Argument

The prosecutor's primary argument was that the gruesome circumstances of the crime warranted the imposition of death. He recounted those circumstances for the jury in chilling detail. He also emphasized that according to Petitioner's own experts, Petitioner does not suffer from a mental illness or defect and argued that drug use does not explain the crimes. Defense counsel began his argument by explaining that he would not argue that Petitioner had ever done anything to his credit; nor would he ask the jury to show mercy. He would not present any excuses for Petitioner's crimes and would not present a legal defense based on drug use or mental state. Instead, he would argue that the death penalty is simply not necessary to protect society from Petitioner. First, relying on Dr. Fricke's testimony, counsel argued that the death penalty is not necessary because as a sociopath Petitioner is controllable. Because Petitioner has a psychological disorder rather than a mental illness, he can be controlled provided he is in a structured environment, such as prison. Counsel emphasized that Petitioner had never committed a violent crime while in prison and thus life in prison rather than the death penalty is all that is needed to protect society. Second, counsel urged the jury to consider Petitioner's dysfunctional family background as an extenuating circumstance. He cautioned that he was not offering Petitioner's family background as an excuse, but rather as an explanation for how he developed his personality disorder.

Finally, counsel argued that Petitioner's worst crimes were committed when he was on drugs. Counsel again cautioned that he was not arguing that the drugs constitute a legal excuse for the crime; instead, he urged that the public will be safe if Petitioner is sentenced to life in prison because he will not have access to drugs and therefore will not be a danger.

D. The Verdict

The jury deliberated for less than two hours before returning a verdict of death. Petitioner filed a motion to reduce the penalty to life imprisonment without possibility of parole, which the trial court denied, sentencing Petitioner to death. Petitioner subsequently filed a motion to withdraw his guilty plea, on which the trial court held an evidentiary hearing on June 27 and June 29, 1989. The trial court heard argument and denied the motion to withdraw the plea.


The California Supreme Court affirmed the convictions and sentencing on December 22, 1997. People v. Fairbank, 16 Cal. 4th 1223 (1997), as modified on denial of reh'g (Feb. 18, 1998). The United States Supreme Court denied certiorari on October 5, 1998. Fairbank v. California, 525 U.S. 861 (1998). Petitioner filed his first state habeas petition on September 14, 2000. The California Supreme Court denied this petition on November 12, 2003. State Rec. 46 (In re Fairbank, Cal. Supr. Ct. No. S091530). Also on September 14, 2000, Petitioner filed a habeas petition with this Court. Petitioner subsequently filed an amended petition containing newly exhausted claims, with an effective filing date of November 12, 2003. Respondent filed a motion to dismiss procedurally defaulted claims and claims precluded by Petitioner's guilty plea. On March 22, 2005, the Court denied the motion to dismiss. Now pending is Respondent's motion for summary judgment on all claims.


I. Federal Habeas Review

The Petition must be decided in the context of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Under AEDPA, the Court cannot grant a writ of habeas corpus with respect to any claim that was adjudicated 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). A federal court must presume the correctness of the state court's factual findings. 28 U.S.C. § 2254(e)(1). The "contrary to" and "unreasonable application" clauses of § 2254(d) have separate and distinct meanings. See Williams v Taylor, 529 U.S. 362, 404 (2000). A state court's decision is "contrary to" clearly established federal law if it fails to apply the correct controlling authority or if it applies the controlling authority to a case involving facts materially indistinguishable from those in a controlling case, but nonetheless reaches a different result. Id. at 413-414.

A decision is an "unreasonable application" of federal law if "the state court identifies the correct governing legal principle . . . but unreasonably applies that principle to the facts of the prisoner's case." Id. at 414. "[A] federal habeas court may not issue the writ simply because the court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must be objectively unreasonable." Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003). "While the 'objectively unreasonable' standard is not self-explanatory, at a minimum it denotes a great[] degree of deference to the state courts . . . ." Clark v. Murphy, 331 F.3d 1062, 1068 (9th Cir. 2003). Holdings of the Supreme Court at the time of the state court decision are the only definitive source of clearly established federal law under AEDPA. See Williams, 529 U.S. at 412. While circuit law may be "persuasive authority" for purposes of determining whether a state court decision is an unreasonable application of Supreme Court law, only the Supreme Court's holdings are binding on the state courts and only those holdings need be reasonably applied. See Clark, 331 F.3d at 1070. When a federal court is presented with a state court decision that is unaccompanied by a rationale for its conclusions, the court has no basis other than the record "for knowing whether the state court correctly identified the governing legal principle or was extending the principle into a new context." Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000). In such situations, federal courts must conduct an independent review of the record to determine whether the state court decision is objectively unreasonable. Id. While federal courts "'are not required to defer to a state court's decision when that court gives [them] nothing to defer to, [they] must still focus primarily on Supreme Court cases in deciding whether the state court's resolution of the case constituted an unreasonable application of clearly established federal law.'" Greene v. Lambert, 288 F.3d 1081, 1089 (9th Cir. 2002) (quoting Fisher v. Roe, 263 F.3d 906, 914 (9th Cir. 2001)). Furthermore, independent review of the record is not de novo review of the constitutional issue, but rather, the only way a federal court can determine whether a silent state court decision is objectively unreasonable. Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). However, if the state court did not reach the merits of a claim, federal review of the claim is de novo. Nulph v. Cook, 333 F.3d 1052, 1057 (9th Cir. 2003).

Even if a petitioner meets the requirements of § 2254(d), 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. Brecht v. Abrahamson, 507 U.S. 619, 638 (1993). Under this standard, petitioners "may obtain plenary review of their constitutional claims, but they are not entitled to habeas relief based on trial error unless they can establish that it resulted in 'actual prejudice.'" Id. at 637 (citing United States v. Lane, 474 U.S. 438, 439 (1986)).

II. Evidentiary Hearing

Under AEDPA, a district court presented with a request for an evidentiary hearing must determine whether a factual basis exists in the record to support the petitioner's claim. If it does not, and an evidentiary hearing might be appropriate, the court's first task in determining whether to grant an evidentiary hearing is to ascertain whether the petitioner has "failed to develop the factual basis of a claim in State court." Baja v. Ducharme, 187 F.3d 1075, 1077 (9th Cir. 1999). If so, the district court may not hold an evidentiary hearing unless the petitioner shows that: (1) the claim relies either on (a) a new rule of constitutional law that the Supreme Court has made retroactive to cases on collateral review, or (b) a factual predicate that could not have been previously discovered through the exercise of due diligence, and (2) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable fact finder would have found the applicant guilty of the underlying offense. 28 U.S.C. § 2254(e)(2). Under AEDPA, "a failure to develop the factual basis of a claim is not established unless there is a lack of diligence, or some greater fault, attributable to the prisoner or the prisoner's counsel." Williams (Michael) v. Taylor, 529 U.S. 420, 432 (2000). If, on the other hand, a petitioner has not failed to develop the factual basis for his claims in the state court, he is entitled to a federal evidentiary hearing if the facts are in dispute, and (1) the petitioner's allegations, if proven, would establish the right to relief, and (2) the state court trier of fact has not, after a full and fair hearing, reliably found the relevant facts. See Insyxiengmay v. Morgan, 403 F.3d 657, 670 (9th Cir. 2005) (citing Townsend v. Sain, 372 U.S. 293, 313 (1963)); Williams (Keith) v. Calderon, 52 F.3d 1465, 1484 (9th Cir. 1995); Jeffries v. Blodgett, 5 F.3d 1180, 1187 (9th Cir. 1993). Under these circumstances, a petition may be dismissed without a hearing only when it consists solely of conclusory, unsworn statements unsupported by any proof or offer thereof. Phillips v. Woodford, 267 F.3d 966, 973 (9th Cir. 2001). Circumstances under which an evidentiary hearing is not required include: (1) where the petitioner fails to make out a colorable claim for relief, see Rich v. Calderon, 170 F.3d 1236, 1239 (9th Cir.), amended, 187 F.3d 1064, 1067-68 (9th Cir. 1999); Williams (Keith), 52 F.3d at 1484; (2) where there are no disputed facts and the claim presents a purely legal question, see Williams (Keith), 52 F.3d at 1484; or (3) where the issues presented can be resolved by reference to the state court record. See Totten v. Merkle, 137 F.3d 1172, 1176 (9th Cir. 1998). A district court has discretion to expand the record with discovery and documentary evidence instead of conducting a full evidentiary hearing. Williams (Stanley) v. Woodford, 384 F.3d 567, 590 (9th Cir. 2004), reh'g and reh'g en banc denied, 396 F.3d 1059 (9th Cir. 2005). This permissible intermediate step may avoid the necessity of an expensive and time consuming evidentiary hearing in every habeas corpus case. Id. at 590-91. That the issue to be decided is one of credibility does not necessarily compel a full evidentiary hearing. See id. at 590-91.


I. Ineffective Assistance of Counsel Claims

In Claims One, Two and Three, Petitioner argues that he received ineffective assistance of counsel at all phases of his capital trial and that he was denied effective assistance of appellate and habeas counsel. To prevail on habeas on a claim of ineffective assistance of counsel, a petitioner must establish both (1) that counsel's performance was so deficient that it fell below an "objective standard of reasonableness" and (2) that the deficient performance was prejudicial, rendering the results of his trial unreliable or fundamentally unfair. See Raley v. Ylst, 470 F.3d 792, 799 (9th Cir. 2006) (quoting Strickland v. Washington, 466 U.S. 668, 688, 692 (1984)). To establish prejudice, Petitioner "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694.

A. Trial Counsel

Respondent seeks summary judgment as to Petitioner's claim that his attorneys provided ineffective assistance at all stages of his trial. The state supreme court rejected this claim on the merits. State Rec. 46. The Court concludes that Respondent has met his burden to establish the absence of a genuine issue of material fact on Petitioner's ineffective assistance claims.

1. Pre-trial Phase

Petitioner's first set of trial counsel, Gordon Rockhill and Dek Ketchum, located and moved inculpatory physical evidence--a trunk, a knife, a skirt and a sweater--after Petitioner told them where he left the items. Am. Pet., ¶ 299. The prosecution learned of these items from Petitioner's jailhouse letters to Szymkiewicz. See State Rec. 1 at 133, 147 ("I foolishly told lawyer where weapons were cause he said with those, no problem for 2nd degree;" "my attorneys now have weapons & D.A. doesn't know it yet!"). On July 22, 1986, the prosecution filed a motion to compel production of the evidence. In opposition, defense counsel argued that if they did possess the evidence, they had no duty to produce them prior to trial, asserting Petitioner's privilege against self-incrimination under Goldsmith v. Superior Court, 152 Cal. App. 3d 76 (1984). The trial court denied the prosecution's motion to compel, but the Court of Appeal issued a writ of mandate, clarifying that when defense counsel removes, possesses, or alters physical evidence, counsel must immediately inform the court. People v. Superior Court (Fairbank), 192 Cal. App. 3d 32, 39-40 (1987) (citing People v. Meredith, 29 Cal. 3d 682 (1981)). The Court of Appeal held that the trial court, exercising care to shield privileged communications and defense strategies from prosecution view, must then ensure that the prosecution has timely access to the evidence and timely information about its alteration. Id. at 40. Pursuant to the Court of Appeal's writ of mandate, the trial court held an in camera hearing at which counsel Rockhill represented that his and co-counsel's intention in taking this evidence was "to use them in the course of the trial, because the credibility of Mr. Fairbank, who is also anticipated [to] testify, [is] absolutely critical in this case. . . . It was my thought that if we could show the jury that Mr. Fairbank was willing to come forward with . . . actual physical evidence to show that what he says has verity, then the jury would [be] willing to give him a measure of credibility that they probably would not be willing to give him without something physical to back-up his account of what happened on the night in question." State Rec. 24 at 5. Rockhill conceded that a defense expert had tested the blood in the trunk and believed that the blood was consistent with the victim's blood. State Rec. 24 at 10. Rockhill also revealed that defense counsel searched for a fork to validate Petitioner's version and explain the number of stab wounds, but they were unsuccessful. State Rec. at 24 10.

The trial court ordered defense counsel to produce the physical evidence to the prosecution, noting that "it may be a crime for them not to do so." State Rec. 25 at 18. Defense counsel agreed to comply but advised the trial court that they would seek a protective order to protect the strategies described to the court during the in camera proceedings. State Rec. 25 at 16. The following day defense counsel produced a wooden handle knife with an 8-inch blade, a skirt and sweater with various hair, fiber and debris, and a green steamer trunk. State Rec. 1 at 498-99. Defense counsel also filed a declaration stating that they discovered the knife on May 1, 1986 in San Francisco; the trunk on June 24, 1986 at a mobile home in San Francisco; and the clothing on June 7, 1986 off Skyline Boulevard in San Mateo County. State Rec. 1 at 500-502. Defense counsel subsequently filed a motion for an order to protect the defense strategy from prosecution view, asking that the physical evidence be returned to the defense at the end of the prosecution's case-in-chief, and that the defense be allowed to introduce the items at trial, prior to which, the jury would not be informed that defense counsel had control of the evidence. State Rec. 1 at 445-46. At a hearing the following week, the trial court denied the motion for protective order. State Rec. 10 at 7. Defense counsel filed a petition for a writ of prohibition, which the Court of Appeal denied; the California Supreme Court subsequently denied the petition for review. State Rec. 26 at 54.

On January 20, 1988, when the trial court and counsel learned that the state supreme court denied review on the motion for protective order, Rockhill and co-counsel moved to withdraw from representation on the grounds that denial of the protective order "made it impossible for us to represent Mr. Fairbank without grave risk . . . that the presence of myself and Mr. Ketchum would deny Mr. Fairbank . . . due process." State Rec. 26 at 58. The trial court granted the motion to withdraw, at which point Cliff Cretan and Jeff Boyarsky were designated new counsel. State Rec. 26 at 59. The prosecution subsequently moved to compel notes, diagrams, photographs, test results and other information concerning the physical evidence. The trial court held an evidentiary hearing and permitted limited questioning about where and how the evidence was obtained, how it was preserved, and the procedures used in testing the evidence. Former defense counsel Rockhill and Ketchum, defense investigator, John Stevenot, and their forensic expert testified at the hearing on October 27, 1988. State Rec. 29 at 162-280.

The prosecution also moved to find a partial waiver of the attorney-client privilege arising from Petitioner's notes and discussions with inmate John Szymkiewicz. Szymkiewicz testified to authenticate the letters he received from Petitioner. State Rec. 29 at 321-360. He explained that he considered falsely admitting to the murder before approaching police officers about a deal to reduce his own sentence in exchange for the information on Petitioner. State Rec. 29 at 356. The letters reflected details about the crime that Petitioner instructed him to remember, such as Szymkiewicz putting the trunk in the car, the weapons being placed in the bushes about a mile from the crime scene, and Petitioner telling his attorneys where the weapons were hidden. State Rec. 29 at 321-326. The trial court denied the motion to find partial waiver of attorney-client privilege on the ground that the evidence was insufficient to find that Petitioner disclosed a significant part of his communications with his attorneys. State Rec. 29 at 368-369. The prosecutor read the content of some of the jailhouse letters during the guilt phase opening statement, including the reference to Petitioner's attorneys having the weapons, although the prosecutor advised the jury that those attorneys were not the present trial counsel. State Rec. 29 at 2698-2702. The items recovered by defense counsel were introduced during the penalty phase, although the letters recounting the details of the crime were not. Petitioner contends that his former defense counsel's strategy for obtaining the inculpatory evidence--that is, to produce the evidence through Petitioner at trial to boost his credibility--was unreasonable because (a) counsel should have known that once they took physical control of the items they were bound to inform the court; (b) if counsel had left the ...

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