The opinion of the court was delivered by: Christina A. Snyder United States District Judge
ORDER GRANTING IN PART PETITION FOR WRIT OF HABEAS CORPUS
Petitioner Ronald Deere is an inmate on California's death row. He was convicted of one count of first-degree murder for the killing of Don Davis and two counts of second-degree murder for the killings of Michelle and Melissa Davis, accompanied by a finding of multiple-murder special circumstance, and was sentenced to death. Upon the direct appeal of that sentence, the California Supreme Court found that defense counsel's failure to present any mitigating evidence in the penalty phase deprived Deere of effective assistance of counsel, notwithstanding Deere's own decision to invite a death sentence. The sentence was reversed as to penalty and affirmed in all other respects. People v. Deere, 41 Cal. 3d 353, 710 P.2d 925, 222 Cal. Rptr. 13 (1985).
After the retrial of the penalty phase, Deere was again given a sentence of death. The California Supreme Court affirmed the death sentence upon automatic appeal. People v. Deere, 53 Cal. 3d 705, 808 P.2d 1181, 280 Cal. Rptr. 424 (1991).
Deere filed his initial Petition for Writ of Habeas Corpus on May 18, 1993, and filed his First Amended Petition for Writ of Habeas Corpus on July 11, 1994 ("First Amended Petition"). Petitioner filed a Motion for Evidentiary Hearing on October 24, 1995, which was denied in part on May 9, 2000, and denied as to the remainder on June 19, 2000 (Taylor, J.).*fn2 On appeal, the Ninth Circuit held that Deere had presented evidence that "create[d] a real and substantial doubt" as to his competency to plead guilty if "taken at face value and assumed to be true," and that an evidentiary hearing was required. Deere v. Woodford, 339 F.3d 1084, 1087 (2003) (internal quotation omitted). The Ninth Circuit remanded the case "to the district court with directions to hold a hearing on Deere's claim that he was incompetent to plead guilty, and to reconsider the petition for writ of habeas corpus as to the claims premised on that contention." Id. at 1087. This Court held an evidentiary hearing on September 25, 26, and 27 and October 9, 2007 (Snyder, J.).
On August 21, 2009, the Court took "the unusual step of giving Petitioner another chance to present additional evidence to support his federal habeas claim for relief. The Court order[ed] Petitioner to submit to four psychological or psychiatric examinations. The Court [took] this unusual step to ensure that the record will include all evidence that would best answer the question remanded back to this Court by the Ninth Circuit for its resolution." (Order re Court Mandated Mental Examinations, August 21, 2009, at 3.) The parties agreed that on December 15, 2009, Dr. Park Dietz, for Respondent, and Dr. Pablo Stewart, for Petitioner, would jointly examine Petitioner. (Joint Status Report, filed September 28, 2009, at 2; see also Order re Schedule for Court Mandated Mental Examination and Reports, October 5, 2009.) The parties agreed that the evaluations and supporting materials would not be used against Petitioner in the event of retrial, except for the purpose of impeaching Petitioner's testimony should he testify, and would not be used in any competency evaluations or determinations beyond the instant proceedings. (Protective Order re Psychiatric Reports, December 3, 2009.)
On December 29, 2009, the parties informed the Court that Petitioner refused to submit to the scheduled psychiatric evaluations. (See Joint Status Report re Compliance with Court Order Dated October 5, 2009, filed December 29, 2009, at 2.) Petitioner's counsel informed the Court that Petitioner initially agreed to the evaluation "after considerable efforts by counsel." (Id.) Petitioner's counsel explained:
As the scheduled date approached, however, Petitioner began to back off from that agreement to the point that less than one week before the scheduled evaluation, Petitioner advised counsel that he would not participate in the evaluation. Due to the limited time available, . . . counsel were unable to engage Petitioner in further discussions. . . . Although subsequent communication with Petitioner gave counsel some hope that he would cooperate and that another date could be scheduled, counsel is presently convinced that no amount of further communication with Petitioner on this issue will result in his cooperation. After conferring with psychiatrist Pablo Stewart, who was designated as Petitioner's expert for this evaluation [and who testified at Petitioner's evidentiary hearing], counsel is of the opinion that Petitioner's refusal is the product of his mental disabilities and disorders. (Id.) The parties requested that the Court rule on Petitioner's First Amended Petition based upon the evidence and briefing previously submitted. (Id. at 2-3.) In consideration of the information provided in the parties' Joint Status Report, the Court indicated that it would so rule. (Order re Ruling to Be Issued Based on Record Before the Court, January 12, 2010.)
In light of the evidence adduced at the evidentiary hearing and presented in the parties' briefing, the Court has reviewed Petitioner's claims of ineffective assistance of counsel, in failing to protect Deere from standing trial while incompetent and failing to represent Deere properly with respect to his competency to plead guilty (Claim 6(b), (c)); of actual incompetence at the time of Deere's guilty plea, to assist counsel and defend against capital charges (Claim 1), and to enter a knowing, intelligent, and voluntary plea (Claim 4); and of constitutional inadequacy in the competency evaluation he received from Dr. Tommy Bolger (Claim 3). (See Order re Respondent's In Limine Motion, May 14, 2007 (defining claims for reconsideration and limiting reconsideration of Claim 3 as such).)
As set forth below, the Court finds that Petitioner is entitled to relief based upon the ineffective assistance of trial counsel, and grants in part Petitioner's First Amended Petition on that basis. Accordingly, the Court does not reach the issue of Deere's actual competence or incompetence at the time of his guilty plea. Petitioner's claim of constitutional inadequacy in the competency evaluation he received is denied.
I. Factual Background and Trial Court Proceedings
Deere's father was a Native American of Creek and Seminole heritage. (J. Br. at 10 ¶ 19.)*fn3 His mother was Caucasian. (Id.) Deere was born in 1954. (Id.) At the time, his family lived with his father's mother in Oklahoma near a polluted stream. (Id. at 10 ¶¶ 19-20.) As a child, Deere played in a nearby pond that was fed by the polluted stream. (Id. at 10 ¶ 20.)
Deere had convulsions about three or four times before the age of one year.
(Id. at 10-11 ¶ 21.) He had seven siblings, and the family lived in chronic poverty. (Id. at 11 ¶ 22.) His father and mother came to work as farm laborers in Blythe, California. (Id.) His father worked with pesticides and fertilizers. (Id.)
The Deere children played in a ditch apparently carrying polluted water, ate fish from the canals, and used the water to irrigate the family's vegetable garden. (Id. at 11 ¶ 23.) Chemicals were stored near the area that the children played and the fields were often sprayed with pesticides. (Id. at 12 ¶ 23.) The water the family drank came from a well on the property and sometimes had an odd taste. (Id. at 11 ¶ 23.)
Deere's father was a violent alcoholic, who beat his children and his wife. (Id. at 13 ¶ 26.) Deere was also beaten by his mother. (Id.)
Beginning in the third grade, Deere was placed in special education classes. (Id. at 12 ¶ 25.) He was described as hyperactive with a very short attention span, and his teacher thought he had emotional problems that caused his learning difficulties. (Id.) Testing administered to Deere when he was ten years old showed a verbal I.Q. of 76, a performance I.Q. of 80, and a full scale I.Q. of 76. (Id. at 13 ¶ 25.) Deere was electrocuted when he was ten or eleven years old, and after the electrocution he was not as coordinated. (Id. at 12 ¶ 24.)
By age eleven Deere was cutting himself, and by age twelve he was running away from home. (Id. at 14 ¶ 28.) Deere quit school in the eighth grade and worked in the fields full time. (Id. at 12 ¶ 23.) When he was fourteen years old, Deere was committed to the California Youth Authority and spent the next several years in and out of various institutions. (Id. at 14 ¶ 28.)
When Deere was seventeen years old, he was discharged from the California Youth Authority and began living with his then-girlfriend, Alice Lyon. (Id. at 14 ¶ 29.) Lyon believed Deere was "two different people," a good guy called Ronnie, and a scary, violent individual called "Running Deer," who appeared when Deere was intoxicated on drugs or alcohol. (Id.) Deere's girlfriend at the time of the murders, Cindy Gleason, also characterized Deere in this way. (Id.)
Deere repeatedly asked Alice Lyon and others to kill him. (Id.) Lyon left Deere shortly after their daughter, April, was born, because she feared for her own safety. (Id.)
Deere was known by local law enforcement for his alcohol related offenses, and once told the officers to let him die when he was bleeding profusely from his hand. (Id. at 14-15 ¶ 30.) He refused medical attention on another occasion when police found him with blood on his sleeves, six-inch cuts on both arms, and a shorter cut on his chest. (Id. at 15 ¶ 30.) He was arrested several times for being drunk in public, once for grand theft for poaching a cow, and once for being in possession of a concealed weapon. (Id. at 14-15 ¶¶ 30-31.)
During the six months before the murders, Deere was arrested numerous times for being drunk in public, for disturbing the peace, and for other misdemeanors. (Id. at 15-16 ¶ 32.) The incidents of Deere's self-mutilation increased. (Id.) Deere complained of constant headaches and drank a fifth of vodka daily. (See id. at 16 ¶ 32.)
Meanwhile, Cindy's sister, Kathy, was also experiencing domestic problems. (Id. at 16 ¶ 33; Evid. Hr'g Ex. P15-B). She sought a divorce from her husband, Don Davis, and went to social worker Virginia Erickson Tiernan (formerly Ginny Erickson Wyatt) of Children's Services for help for mistreating her two daughters when disciplining them. (J. Br. at 16 ¶ 33; Evid. Hr'g Ex. P15-B.)
In early January, 1982, Deere's relationship with Cindy was failing, and Cindy took their baby and moved to her mother's house. (J. Br. at 16 ¶ 33.) Deere said that he would rather die than let Cindy have the baby, and he repeatedly threatened Cindy's family. (Id.) Deere threatened to kill everyone in the Gleason family if he was not given his baby, and threatened to kill members of the family if she left him. (Evid. Hr'g Exs. P20-Q, P20-R; 9/25/07 E.H.T. 168-69, 171.)*fn4 He was arrested for trespassing on the property of Cindy's mother's house on January 9, 1982. (J. Br. at 16 ¶ 32; Evid. Hr'g Ex. P20-R.)
On January 12, 1982, Deere and Cindy met with Ms. Erickson Tiernan in an effort to prevent losing custody of their child through Social Services. (J. Br. at 16 ¶ 32; Evid. Hr'g Ex. P15-A ¶ 2.) Ms. Erickson Tiernan was the sole social worker in Blythe for Children's Services, and she was responsible for investigating child abuse circumstances and providing families with support in raising their children. (Evid. Hr'g Ex. P15-A ¶ 2; 9/25/07 E.H.T. 155.) Ms. Erickson Tiernan's work involved interviewing and documenting the statements of parents, children, and witnesses; drawing conclusions and taking action based upon them; keeping case records for all her activities; and writing reports to courts. (9/25/07 E.H.T. 156.)
When she met with Deere and Cindy on January 12, 1982, Ms. Erickson Tiernan saw a 7 or 8 inch cut on Deere's arm. (Id. at 158-59, 161.) Cindy reported to Ms. Erickson Tiernan that Deere "had cut a deep gouge mark in his chest area including puncturing a lung . . . ." (Id. at 161.) Deere explained that if he did not cut himself, he would hurt someone else. (Id. at 162-63.) Ms. Erickson Tiernan testified that she "saw that [Deere] had psychiatric problems from the first moment [she] looked at him." (Id. at 170.) She observed what she described as a "dark emptiness" in Deere and identified him as deeply disturbed. (Id. at 163-64.) She asked Deere if he would be willing to go to the Desert Community Mental Health Center, and Deere agreed. (Id. at 163.) Deere was seen by an intake worker there on January 15, 1982. (Evid. Hr'g Ex. P16.) The intake worker reported, inter alia, that Deere "say[s] that when things go wrong, he gets depressed, and then he takes some drink. . . . Clients [sic] mood is depressive, mild to moderate. . . . Client denies any suicidal ideation, [or] homocidal ideations [sic]." (Id.) The intake worker diagnosed a marital problem, alcohol abuse, and antisocial personality disorder, but set a goal in Deere's Individualized Treatment Plan for individual therapy to "[e]xplore with client effective ways of coping with his periods of depression." (Id.)
In February 1982, Deere and Cindy temporarily reconciled and moved into Don Davis' trailer. (J. Br. at 16 ¶ 34.) That same month, Cindy left Deere again, however, and again took their baby. (Id. at 16-17 ¶ 34.) Deere entered an aggravated cycle of self mutilation, substance abuse and threats. (Id. at 17 ¶ 34.) Cindy sought assistance from law enforcement, social services and probation. (Id.) She called Ms. Erickson Tiernan twice on February 22, 1982, once through the sheriff's department and once at night with her mother, June Gleeson. (9/25/07 E.H.T. 166-68.) Ms. Erickson Tiernan advised Cindy to "get [Deere] into mental health" and to continue to call the sheriff if Deere came to her home intoxicated and aggressive. (Id.) The sheriff's department held Deere for four hours that night and released him. (Id.) Ms. Erickson Tiernan believed the situation had become an emergency. (Id. at 168-69.) The next morning, she called the Mental Health Department and the probation department and unsuccessfully requested that Deere be placed under a 72-hour psychiatric hold, pursuant to California Welfare and Institutions Code Section 5150. (Id. at 166-69; J. Br. at 17 ¶ 34.)
Fearing that Deere's depression would lead to violence, the probation department did advise Deere to seek assistance from the mental health clinic. (J. Br. at 17 ¶ 34.) Deere returned to the mental health clinic on February 25, 1982. (Id.) The intake worker at the mental health clinic considered the slash on Deere's right forearm to be a "manipulative/hostile gesture to get attention," and concluded that there was "no indication" that Deere presented a "danger to self." (Id.) The intake worker advised Deere to keep his regularly scheduled appointment for the following week. (Id.)
Ms. Erickson Tiernan continued to receive calls from Cindy and June, and in the two weeks before the murders Cindy and June called her two or three times each night. (9/25/07 E.H.T. 170-71.) During those two weeks, Ms. Erickson Tiernan went to the sheriff's department, the police department, and the probation department in person every day, in her official capacity, regarding Deere. (Id. at 171-72.) She repeatedly informed the sheriff's department of Deere's threats to kill Cindy or her family members. (Id. at 171.)
The day before the murders, on March 3, 1982, Cindy called the police to complain about Deere's threatening and drunken behavior. (J. Br. at 17 ¶ 35.) June called Ms. Erickson Tiernan and reported that she had gone to Dr. Freddie Easton, Supervising Clinical Psychologist at the Desert Community Mental Health Center, about Deere. (9/25/07 E.H.T. 173-74.) Dr. Easton had previously approved the Intake Summary prepared from Deere's January 15 visit to the Desert Community Mental Health Center. (See Evid. Hr'g Ex. P16.). Dr. Easton told June that he was unable to talk with Deere unless June and Cindy went through "the proper channels." (9/25/07 E.H.T. 173-74.) The next day, Cindy also called the probation officer for assistance, and the probation officer suggested that Cindy call Dr. Easton. (J. Br. at 18 ¶ 36.) When Cindy did so, Dr. Easton advised her to set up an appointment. (Id.)
That same day, on March 4, 1982, at approximately 3:00 p.m., Don Davis picked up his two daughters from Kathy for visitation and went to his trailer. (Id. at 18 ¶ 37; Evid. Hr'g Ex. P21.) A short time after 3:00 p.m., Deere called Cindy and told her, "I'm going to hurt you like you're hurting me. Now you'll know how much you're hurting me. It'll be on your conscience[;] I'm not responsible for what I'm going to do." (Evid. Hr'g Ex. P21.) At approximately 4:30 p.m., Don called Cindy because he suspected that someone had been in his trailer. (J. Br. at 18 ¶ 37.) Don told Cindy that there was a different tape in the tape player and that he would look around and call her back. (Id.) Don did not call back. (Id.) Several hours later, Cindy and Kathy drove out to the trailer and discovered that Don and both girls had been shot and killed. (Id.)
Between the hours of 6:00 p.m. and 8:30 p.m. that evening, witnesses reported seeing Deere at a market, apparently drunk or in a daze. (Id.)
Deere was immediately the focus of the criminal investigation. (Id. at 19 ¶ 38.) Deere was found five days later, on March 9, 1982, and arrested in the outskirts of Blythe. (Id. at 19 ¶ 39.) At the time of his arrest, Deere was sitting under a bush, missing his right shoe and his shirt. (Id.) He had with him three photographs of Cindy, two handwritten notes to "Shorty" (Cindy's nickname), and one note to "mom and dad." (Id.) Deere was arrested without incident, and he did not possess any weapons. (Id.) A .22 rifle was found later in a nearby campsite with the following words scratched into the wooden stock: "if you have gone to doctor I got end the mean Ronnie I wish I understood -- Kathy she help kill them now love her -- Now live with it for life -- you killed them to -- Shorty you hurt like me how dose [sic] feel." (Id.) Deere told the arresting officers that he had been living on ditch water and raw birds. (Id.)
When he was interviewed at the police station, Deere told the interrogator that he did not remember anything about being at the trailer, and the first time he heard that the children were dead was when he was arrested. (Id. at 19 ¶ 40.) Later that afternoon, Deere was interviewed by Dr. Tommy Bolger, at the request of the police. (Id. at 20 ¶ 41.)
Deere told Dr. Bolger that he loved the two children, that he cut himself to let his anger escape, that he used to drink excessively because of his headaches, that he was two people (a good Ronnie and a bad Ronnie), and that he wished someone would kill him. (Id.)
After the one-hour conversation, Dr. Bolger concluded in a report (the "March report") that Deere was not mentally ill, was of dull/normal intelligence, showed no signs of organicity, understood the nature of the charges against him, was capable of forming intent and of carrying out an action, and was capable of cooperating with counsel if he felt it to his advantage. (Id.; Evid. Hr'g Ex. P34-A.)
In a later interview with police, Deere talked about having blackouts since the age of 13 and about his headaches. (J. Br. at 20 ¶ 42.) He gave the police permission to talk with the Mental Health Clinic and with Dr. Bolger. (Id.) The police observed that Deere had trouble spelling words such as the days of the week, months, and numbers. (Id.)
While in jail, Deere wrote numerous lengthy letters to Cindy and others. (Id. at 21 ¶ 45.) Most of the letters had a religious theme, reflecting Deere's religious conversion. (Id. at 21-22 ¶ 45.) In his letters to Cindy, Deere said that he was exhausted, that the pressure was unbearable, and that he wanted to get things over with. (Id. at 21 ¶ 43.)
Deere later admitted in letters to Cindy and to his sister that he was high at his preliminary hearing (which was delayed for that reason), and told his sister he was going to try to be in his "right mind" at the rescheduled hearing. (Id. at 21 ¶ 44.)
B. Trial Court Proceedings
Riverside County Deputy Public Defender Glenn S. Jones ("Attorney Jones") was appointed to represent Deere. (Id. at 22 ¶ 46.) At his first meeting with Attorney Jones, Deere told him that he absolutely did not want a trial, did not want any defense presented on his behalf, and demanded to be executed. (Id.) Jones noticed that Deere had a significant gash on his arm and numerous scars on his abdomen and chest from what appeared to be self-inflicted wounds. (Id.) From their first meeting, Deere viewed his attorney as "the enemy," as someone who would stand in the way of his wishes. (Id.) He never discussed the facts of the case with Attorney Jones, and he never changed his position that he wanted no defense presented on his behalf and demanded to be executed. (Id. at 22-23 ¶ 46; see also Evid. Hr'g Ex. R2-B at 11 (testimony of Attorney Jones that "[Deere] never would discuss the facts of the case, never ever").)
Attorney Jones found there were obvious mental health aspects to the case.
(J. Br. at 23 ¶ 47.) Attorney Jones was aware of Deere's self-inflicted mutilation, alcoholism, and drug abuse, and acknowledged that these were "red lights" or indicators that his client may have had some mental issues. (9/27/07 E.H.T. 31, 35-36, 39.) Mr. Jones testified that he was aware that Deere had been self-mutilating "for quite some time," that "right from the beginning from the first interview, [he] knew that [he was] dealing with an abnormal person," and that that abnormality "very well could be" stemming from a mental issue. (Id. at 33-35.) Mr. Jones was aware of Deere's alcoholism "early on," and knew that alcoholism "can be either an indicator of a mental problem or a mask of a mental problem." (Id. at 35, 36.)
Attorney Jones submitted an application for funding indicating that "the proper defense of this case will require extensive psychological psychiatric [sic] examination of Deere," and that he intended to retain at least one psychologist and one psychiatrist. (J. Br. at 24 ¶ 48.) Although the Court authorized $5,000.00, only $1,696.86 was spent. (Id.)
Attorney Jones knew psychologist William Jones, Ph.D., because he had worked with him on several cases. (Id. at 23 ¶ 47.) Attorney Jones spoke with Dr. Jones for about 45 minutes on March 17, 1982. (Id.) He provided Dr. Jones with the police reports of the homicides and with Dr. Bolger's March report. (Id.) Attorney Jones asked Dr. Jones to conduct testing and provide him with a general psychological evaluation, because he wanted background information before focusing upon any particular mental defense. (Id.) Attorney Jones had absolutely no doubt that Deere was competent and saw no hallmarks at all of incompetency. (Id. at 23-24 ¶ 47.) Although Attorney Jones then issued subpoenas to obtain Deere's medical, school, juvenile court, and sheriff's department records and received records from two physicians and the sheriff's department, he did not give any of these records to Dr. Jones or to Dr. Bolger. (Id. at 24 ¶ 47.)
Attorney Jones's request to Dr. Jones to perform a "general evaluation" of Deere did not include the issue of Deere's competency. (Evid. Hr'g Ex. R2-B at 64-65 (Attorney Jones Dep., June 17, 1998).) Attorney Jones testified that he "didn't retain him [Dr. Jones] to do anything in the area of incompetency." (Id. at 99.) Attorney Jones stated that he "would have made specific reference to competency" had he intended Dr. Jones to evaluate it. (Id. at 64-65.) Attorney Jones indicated that it was "his general practice" to request such a general evaluation without focusing on any particular issue, like competency (id.), and that he "really doubt[ed]" that he would have requested Dr. Jones to perform a competency evaluation early on in the case. (9/27/07 E.H.T. 16.) Mr. Jones explained that he "wouldn't want to get into issues that may come back to haunt [him] at a later point. Competency is a very tricky ground in serious criminal cases because when defendants make statements that can get into the record and get into the prosecution, then you lose control of the case." (Id.) He explained that his general practice, as "a matter of strategy," was to "sever out my defense expert, and if I'm going to move into competency areas, [retain] a separate expert so I don't taint either side with what may come out," and so that he could avoid "things coming out that you don't want in the record. . . . [A]s a matter of general practice, I just wouldn't want my Ph.D., who is doing my workup, to get involved with the competency issue." (Evid. Hr'g Ex. R2-C at 133-34.) While Attorney Jones indicated that he would have expected Dr. Jones to relay to him any competency concerns that may arise, he specified that he would only have that expectation "unless I specifically told [Dr. Jones] just to stay away from competency. I may have. I think I have told that to doctors sometimes when I'm really concerned that something may get into the record I don't want in the record." (Id.)
Dr. Jones also testified that Attorney Jones did not ask him to address Deere's competence and that he did not consider it an objective of his evaluation. (9/25/07 E.H.T. 13, 32, 35.) Dr. Jones explained that the ethical principals generally accepted in the field in 1982 (later published in a formal code of ethics) and the established procedure at that time dictated that forensic psychologists "avoid offering information from their investigation or evaluations that does not bear directly upon the legal purpose of their professional services and that is not critical as support for their product . . . except where such disclosure is required by law." (Id. at ...