The opinion of the court was delivered by: Anthony W. Ishii Chief United States District Judge
Memorandum and Order Granting of San Quentin State Prison, Petition for Writ of Habeas Corpus
Petitioner Douglas Ray Stankewitz ("Stankewitz") appears before this Court pursuant to a partial remand of his petition for a writ of habeas corpus by the Ninth Circuit. See Stankewitz v. Woodford, 365 F.3d 706 (9th Cir. 2004). Stankewitz's initial federal petition was denied on the merits as to all claims December 22, 2000. Doc. 448.
In 2000, as the parties prepared for expert depositions in contemplation of a federal evidentiary hearing, Stankewitz for the first time produced a voluminous set of documents he represented were relied on by his experts in preparing their opinions. See Doc. 443, Notice of Filing, (hereafter "Jointly Filed Documents"). At the same time, the grant of an evidentiary hearing was vacated, and Stankewitz's federal petition was subsequently denied. In denying the present claim, this Court found that Stankewitz had not established prejudice.
Doc. 448, at 83. Specifically, this Court concluded that: (1) Stankewitz was aware that evidence of his background could be presented, but he had objected to any such testimony; (2) Stankewitz objected at both trials to the presentation of expert testimony; (3) despite Stankewitz's continued opposition to a mental defense, Goodwin had introduced evidence of his background and upbringing through the testimony of Joe Walden, the former director of juvenile probation for Fresno County; and (4) Goodwin's use of Walden may have been a tactical choice (one which this Court noted was also used by counsel at the first trial), "since as a probation officer Mr. Walden could have been seen as having a higher level of credibility than would Stankewitz's family, the majority of whom had either criminal records, histories of drug abuse or both." Doc. 448, at 83-84.
While disagreeing with the Warden's contention that the aggravating evidence was so overwhelming additional mitigating evidence could not have made a difference, this Court nonetheless concluded that "Mr. Goodwin made an impassioned plea for mercy and did present mitigating evidence to the jury through Mr. Walden's testimony," that "the mitigating evidence Mr. Goodwin failed to present is neither compelling nor exculpatory," and that much of it was cumulative of the evidence presented at trial. Id., at 84. Focusing on Stankewitz's mental health claims, and referencing numerous documents from the Jointly Filed Documents, this Court rejected the opinions of experts hired by Stankewitz during the federal post-conviction proceedings and concluded that substantial evidence at the time of the second trial supported the diagnosis of antisocial or sociopathic personality disorder made by the experts from the first trial. Id., at 16-18, 85. This Court further concluded the record supported Goodwin's assertion that Stankewitz would not consent to the presentation of mitigating evidence from family members, as no family members had testified at the first trial. Id., at 85. Finally, this Court concluded that Stankewitz could not establish prejudice as it was not reasonably probable that additional mitigating evidence would have resulted in a life sentence given the circumstances of the crime, Stankewitz's extensive violent criminal history, and his continuation of violent behavior while in prison. Doc. 448, at 85.
The Ninth Circuit, after affirming this Court's denial of the petition in all other respects, remanded for an evidentiary hearing on the sole claim of ineffective assistance of counsel during the penalty phase of trial, holding that
Stankewitz raised a colorable claim Hugh Goodwin, his attorney at his second trial, rendered ineffective assistance by failing to give the jury mitigating information "that might have humanized Stankewitz," and that as a result Goodwin's performance fell below constitutionally acceptable professional standards. Stankewitz v. Woodford, 365 F.3d at 708, 720-22, 724. In determining whether Stankewitz had raised a colorable claim, the Circuit was compelled to view as true all of Stankewitz's factual allegations, included the long-disputed assertion that Goodwin had not obtained or reviewed any of counsel's records from the first trial.
New counsel was appointed to represent Stankewitz in his federal habeas proceeding December 18, 2007, and the parties subsequently agreed to brief the merits of the remanded claim based on the evidence currently in the record, with the provision that the briefing be without prejudice to a future request for an evidentiary hearing. Stankewitz filed his brief in support of the remanded claim November 19, 2008. Doc. 587. Respondent Robert Wong ("the Warden") filed his opposing brief February 18, 2009. Doc. 589. Stankewitz filed his reply brief May 29, 2009. Doc. 597.
The standard for ineffective assistance of counsel claims is set forth in Strickland v. Washington, 466 U.S. 668 (1984). Stankewitz must establish that his counsel's performance was deficient and that the deficiency prejudiced the outcome of his trial. Id. at 689, 694. Counsel's failure to investigate and present mitigating evidence presents serious constitutional concerns. Wiggins v. Smith, 539 U.S. 510 (2003); Williams v. Taylor, 529 U.S. 362 (2000). Both cases emphasize counsel's duty to conduct a thorough investigation, and Williams states that merely presenting some evidence does not discharge counsel's duty. Rather, a penalty phase ineffective assistance claim depends on the magnitude of the discrepancy between what counsel did investigate and present and what counsel could have investigated and presented. Stankewitz v. Woodford, 365 F.3d 706, 715-716 (9th Cir. 2004) (citing Wiggins and Williams).
Summary of the Parties' Respective Arguments
Stankewitz argues he has presented sufficient evidence, which is largely uncontested, which supports the finding that Goodwin's performance at the penalty phase was deficient under the established principles governing counsel in capital cases, and that Stankewitz was prejudiced by Goodwin's failure to investigate and present any more than minimal mitigation at penalty, as well as present available evidence undermining aggravation.
The Warden argues in opposition that the established facts of this case have changed dramatically since the remand by the Ninth Circuit, especially the revelation of the fact that Goodwin did obtain and review the trial counsel's files from Stankewitz's first trial, and that those changes undermine the remanded claim and conversely support this Court's earlier rejection of the claim.
Stankewitz replies that despite the Warden's assertions, the great bulk of facts in the record are uncontested and are more than sufficient to justify penalty phase relief. The Warden's arguments do not change the fact that (1) Goodwin rendered deficient performance by not conducting an independent investigation, not hiring investigators or experts, and presenting a minimal, cursory and unpersuasive mitigation case, (2) Stankewitz was prejudiced by the jury's lack of knowledge about his toxic upbringing; and (3) Stankewitz was further prejudiced by Goodwin's failure to present available evidence that Stankewitz may not have fired the shots that struck a police officer (aggravating evidence which was presented by the prosecutor to show prior acts of criminal conduct).
Specifically, the Warden contends that Stankewitz's remanded claim alleged Goodwin failed to adequately investigate and present available mitigating evidence about his character and background. In support of this claim, Stankewitz submitted a lengthy description of Stankewitz's background and upbringing, supported primarily by declarations prepared on his behalf and in a few instances by references to official records (which were not filed), and by a 1995 declaration from Goodwin stating he had not obtained or reviewed the files of trial or appellate counsel from the first trial. Stankewitz asserted that with just the effort required to read the transcript from his first trial, Goodwin could have presented some of Stankewitz's relevant background and history.
The Warden observes that some of the factual representations relied on by the Ninth Circuit are untrue, and that Stankewitz now concedes Goodwin obtained the files of counsel from his first trial, and reviewed them and the transcripts. This concession means the contrary statement in Goodwin's 1995 declaration was false, and that Goodwin was aware of virtually all of the facts of significance to Stankewitz's current claim.
The Warden objects to Stankewitz's criticism of Goodwin for failing to present evidence of the violence, neglect, substance abuse and criminality within his family, asserting Stankewitz fails to adequately account for timelines which establish he had little exposure to these family members after age six. The records suggest that from the time he was removed from his family at age six, until he murdered Theresa Greybeal in February 1978, at age 19, Stankewitz was with his mother for a total of no more than seven months, with his father for less than three weeks, and with his aunt Maggie Marquez for a total of no more than nine months. While the record leaves little room for doubt about the failings of Stankewitz's parents, siblings and other family members, the Warden argues few specifics are provided about the first six years of his life, and Stankewitz does not attempt to correlate his accusations of family dysfunction to the relatively narrow periods of time he spent with his family. The Warden contends that, while is it undisputed Stankewitz was taken from his home at age six after his mother beat him on two occasions, the record does not include suggestions of on-going physical abuse, pointing to statements by his mother that their father "never hit the children" and only spanked his sister once, that she "never really spanked any of the children," and that the beatings of Stankewitz were isolated and out of the ordinary. See Petitioner's Supplement to Joint Submission ("SJS"), filed April 23, 2008, Doc. 556, Vol. 3, page 269, and Doc. 558, Vol. 9, page 1044.
The Warden objects to Stankewitz's criticism of Goodwin for failing to present mitigation from the time Stankewitz spent at Napa State Hospital ("NSH") and in the foster home of Ms. Bollmeyer, arguing the allegations of sexual abuse and inappropriate medication and placement at NSH, as well as out-of-control and disturbed behavior, requirement of heavy medication, and lack of basic life skills while in foster care, are based on the thinnest of evidence, almost entirely drawn from a highly questionable source, Ms. Bollmeyer's daughter Rosetta.
The Warden disputes Stankewitz's allegation that Goodwin should have further investigated and presented evidence of impaired intellectual functioning and brain damage, and contends the expanded record now before the Court supports the prior finding that Stankewitz was not incompetent or suffering from a mental disease or disorder. The Warden also disputes the allegation that Goodwin failed to present evidence of Stankewitz's drug use at the time of the crime, asserting that evidence was presented of his drug use before the murder and that the new evidence alleging Stankewitz used marijuana, heroin and alcohol with his brother Willie in the days before the crime is not reliable and is inconsistent with other evidence.
The Warden disputes Stankewitz's allegation that Goodwin should have further investigated and presented evidence that Stankewitz's brother Johnny was in the car during the 1973 CHP shootout, and that there was a strong possibility Johnny, and not Stankewitz, was the shooter. The Warden asserts Johnny's statement does not provide evidence he was the shooter, but incredibly attempts to lay blame for the shooting on his deceased friend Eddie Davis, contending that Eddie fired the shotgun out the passenger window or out the back window through the small crack under the open trunk while keeping his foot on the accelerator and having Stankewitz steer the car. Even if this evidence is viewed as raising a doubt that Stankewitz was the shooter, the Warden contends that at a minimum Stankewitz aided and abetted the shooting, so a tactical choice not to present such evidence was reasonable and understandable. Stankewitz's Allegations of Non-Presented Mitigation Stankewitz's factual allegations of potential mitigation fall into three categories: (1) childhood of abuse/ neglect; (2) history of mental illness; and (3) substance abuse/ lack of sleep prior to the murder. In the first category, Stankewitz submitted agency documents detailing the abuse and neglect which resulted in his removal from home at a young age, numerous declarations from family and friends relating the poverty and abuse (both physical and mental) suffered by Stankewitz in his home, and medical records and declarations indicating the difficulties Stankewitz experienced in subsequent state institutions and foster homes. Of the 16 allegations in the first category, most are shown by government or medical records, although some have questionable support.
1-A. Stankewitz's difficult and traumatic youth, up to age six, included:
a. a psychiatrist's description of his home as "totally lacking in love, warmth and affection and frequently filled with deprivation, rejection and punishment;"
b. a poverty-stricken household where there was often not enough food for the children;*fn1
c. a house that was dirty, filled with vermin and without running water or electricity;*fn2
d. starting to sniff paint by age five, and soon expanding into the use of alcohol and harder drugs*fn3;
e. physical and mental abuse by both parents - being taken to the emergency room three times before his first birthday*fn4;
f. a mother who drank excessively while pregnant with him, was also physically abused by his father, who struck her repeatedly in the abdomen;
g. a violent father of Native American descent who ridiculed him for being light-skinned and told him not to take medication prescribed to control his behavior;
h. a mother who beat him so badly with an electrical cord at age six that she was jailed and he was placed into state care*fn5;
i. older siblings who also abused the younger ones, especially him*fn6;
j. at least one scar, "a substantial indentation on his cranium," which remains as a ...