Appeal from the United States District Court for the Central District of California Manuel L. Real, District Judge, Presiding D.C. No. CV-94-04779-R
The opinion of the court was delivered by: Rymer, Circuit Judge:
Argued and Submitted December 14, 2010-Pasadena, California
Before: Pamela Ann Rymer, Ronald M. Gould, and Johnnie B. Rawlinson, Circuit Judges.
William Charles Payton raped and murdered Pamela Montgomery in the early hours of the morning on May 26, 1980. She had been stabbed twelve times, six of the wounds in a line from Montgomery's stomach to her groin. After that he repeatedly stabbed Patricia Pensinger with a knife, as well as her ten-year old son Blaine who was trying to help his mother. Pensinger suffered 40 stab wounds to her face, neck, back, and chest; Blaine had 23 stab wounds to his face, neck, and back. They survived. Payton's wife testified that when he got home at 6:15 AM, his clothes, face, and hands were covered in blood.
Payton was convicted of the first degree murder and rape of Pamela Montgomery, and the attempted murders of Patricia and Blaine Pensinger. He was sentenced to death. The California Supreme Court affirmed on direct appeal and on habeas review. People v. Payton, 839 P.2d 1035 (Cal. 1992). Payton filed a federal habeas petition on May 3, 1996; in two orders, one issued June 1, 1999 and the other December 17, 1999, the district court granted summary judgment for the state on guilt phase claims, and for Payton on a claim of instructional error applying California's "factor (k)." Cal. Penal Code § 190.3(k). Having granted the writ on this sentencing issue, the court did not address the merits of other penalty phase claims - IV(A)(5), IV(C)(1)-(17), IV(D), and V(A)-(D). The parties cross-appealed.
The three-judge panel reversed on the factor (k) issue, and affirmed on Payton's claims that his counsel rendered ineffective assistance in failing to investigate and present evidence about his personal, family, and mental background and to pursue the background of a jailhouse informant during the penalty phase; that prosecutorial misconduct offended due proccess; and that he received inadequate funds to develop defenses and investigate informants. Payton v. Woodford, 258 F.3d 905, 922-25 (9th Cir. 2001). The panel also rejected Payton's arguments that his counsel prejudicially failed to develop and present evidence of Post Traumatic Stress Disorder (PTSD) resulting from service in Vietnam, and that his sentence should be reversed for cumulative error. Id. at 925. The case was reheard en banc. Payton v. Woodford, 273 F.3d 1271 (9th Cir. 2001) (granting rehearing en banc and ordering panel opinion not to be cited as precedent). The en banc panel reinstated the district court's decision on factor (k), Payton v. Woodford, 299 F.3d 815, 822 (9th Cir. 2002) (en banc), applying pre-AEDPA standards. The Supreme Court held that AEDPA applied. Woodford v. Payton, 538 U.S. 975 (2003). Applying AEDPA, the en banc panel again affirmed on factor
(k), Payton v. Woodford, 346 F.3d 1204, 1206-07 (9th Cir. 2003), and the Supreme Court reversed. Brown v. Payton, 544 U.S. 133, 147 (2005). On August 15, 2005, the en banc panel remanded to the district court to consider Payton's "remaining claims not already addressed on the merits."
On remand, Payton sought to relitigate several issues that the district court (and the three-judge panel) had previously decided. The district court believed that it could rehear previously adjudicated claims, but saw no convincing reason to do so. It addressed the "remaining claims" that had not been resolved, denying each and thus, denying relief on Payton's petition. The court granted a certificate of appealability (COA) on Claim IV(C)(15), which challenges the constitutionality of California's lethal injection protocol.
In addition to the certified issue, Payton appeals what he calls two "procedural issues" and two uncertified issues. The "procedural issues" arise out of Claim IV(A)(4) - whether counsel rendered ineffective assistance in the penalty phase for failure to investigate and present evidence of social history - and Claim IV(B)(1) - whether the prosecution's failure to disclose a confidential informant's status as a government agent was a Brady violation. The district court denied both claims in its 1999 ruling on summary judgment, and refused to reconsider them on remand. The two uncertified issues, on which Payton seeks certification, are Claim IV(A)(5) - whether he was deprived of effective assistance of counsel for failure to investigate or present evidence of PTSD at the penalty phase - and Claim IV(E) - whether his sentence must be overturned because of cumulative error. The district court did not reach either issue in its 1999 orders, although both issues were raised on appeal and resolved by the three-judge panel. In its most recent order, the district court denied both claims on the merits.
We consider all claims as if they were properly before us. We dismiss the challenge to California's lethal injection protocol as ...