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Terry Bemore v. Kevin Chappell

September 19, 2012

TERRY BEMORE,
PETITIONER,
v.
KEVIN CHAPPELL, ACTING WARDEN OF SAN QUENTIN STATE PRISON, RESPONDENT.



The opinion of the court was delivered by: Honorable Larry Alan Burns United States District Judge

DEATH PENALTY CASE ORDER:

(1) DENYING PETITIONER'S MOTION FOR EVIDENTIARY HEARING ON CLAIMS 1-20, 23, AND 30-33 [Doc. No. 69]; (2) DENYING RESPONDENT'S REQUEST TO DISMISS CLAIM 19 AND 23 ON THE BASIS OF PROCEDURAL DEFAULT; (3) DENYING HABEAS RELIEF ON CLAIMS 1-20, 23, AND 29-33; AND (4) DENYING PETITIONER'S MOTION FOR LEAVE TO TAKE DEPOSITIONS [Doc. No. 110]

Presently before the Court is Petitioner's motion for an evidentiary hearing on Claims 1-20, 23 and 30-33 [Doc. No. 69] and Respondent's request to dismiss Claims 19 and 23 on the basis of state procedural bars. Respondent opposes Petitioner's motion for an evidentiary hearing and requests dismissal of all claims. The Court held oral argument on Friday, September 14, 2012, at which Petitioner conceded that an evidentiary hearing was not necessary on Claim 13, 15, 17, 19-20, 23, and 30-32. For the reasons discussed below, Respondent's request for dismissal of Claims 19 and 23 on procedural default grounds is DENIED, Petitioner's motion for an evidentiary hearing on Claims 1-12, 14, 16, 18, and 33 is DENIED, habeas relief is DENIED as to Claims 1-20, 23, and 29-33, and Petitioner's motion for leave to take depositions is DENIED.

I. PROCEDURAL HISTORY

On June 6, 1989, Petitioner was convicted of the August 26, 1985 murder and robbery of Kenneth Muck and robbery of the Aztec Liquor Store in San Diego. Specifically, Petitioner was convicted of one count of first-degree murder, one count of robbery, and one count of burglary. In addition, the jury found true two special circumstance allegations - murder in the commission of a robbery and murder involving the infliction of torture. On August 7, 1989, the jury returned a sentence of death. On November 2, 1989, the trial court denied Petitioner's motions for a new trial and for modification of the sentence, and sentenced him to death.

On automatic appeal (hereinafter "direct appeal") of his conviction and judgment to the California Supreme Court, Petitioner's conviction and sentence were affirmed in a decision issued on April 20, 2000. People v. Bemore, 22 Cal. 4th 809 (2000). The California Supreme Court subsequently denied Petitioner's request for a rehearing, and on January 8, 2001, the Supreme Court of the United States denied his petition for a writ of certiorari.

On June 19, 2000, Petitioner filed a habeas petition with the California Supreme Court. The petition was denied on October 17, 2007 without an evidentiary hearing.

On January 13, 2009, Petitioner filed his Petition for a Writ of Habeas Corpus and attached exhibits with this Court, the operative pleading in this action.*fn1 Petitioner subsequently dropped Claim 35, the one unexhausted claim in his Petition, and on November 4, 2009, Respondent filed an Answer.

On March 17, 2010, Petitioner filed a Motion for Summary Judgment and/or an Evidentiary Hearing on Claims 27-28 and 36-38 of the Petition, an Opening Brief ["Pet. Brief"], and a Motion for an Evidentiary Hearing on Claims 1-20, 23, and 30-33 of the Petition ["Mot."]. On June 7, 2010, Respondent filed a Merits Brief Opposing Petitioner's Motions ["Opp."], and on August 4, 2010, Petitioner filed a Reply. On March 22, 2011, the Court denied Petitioner's Motion for Summary Judgment and/or an Evidentiary Hearing on Claims 27-28 and 36-38, and denied habeas relief on Claims 21-22, 24-28, 34, and 36-38. (See Doc. No. 88.)

II. TRIAL PROCEEDINGS

The Court incorporates by reference the overview of the evidence presented during the guilt and penalty phases of trial as detailed in the Order on Petitioner's Motion for Summary Judgment issued on March 22, 2011. (See Doc. No. 88.)

III. PETITIONER'S CLAIMS

In order to provide a structure for the Court's discussion of Petitioner's habeas claims, set forth below is a list of the claims contained in the federal Petition along with a parenthetical noting whether the claim was previously raised on direct appeal*fn2 , in the state habeas petition, or both. The claims are as follows: Claim 1 - Fraud of Trial Counsel - Obtaining and Using Defense Funds (previously raised as claim 1 of state habeas petition)

Claim 2 - Conflict of Interest of Trial Counsel - Misappropriation of Funds (previously raised as claim 2 of state habeas petition)

Claim 3 - Conflict of Interest of Trial Counsel - Fraud of Investigator Small (previously raised as claim 3 of state habeas petition)

Claim 4 - Conflict of Interest of Trial Counsel - Gambling Habit of Lead Counsel (previously raised as claim 4 of state habeas petition)

Claim 5 - Conflict of Interest of Trial Counsel - Racism of Lead Counsel (previously raised as claim 5 of state habeas petition)

Claim 6 - Conflict of Interest of Trial Counsel - Cumulative Effect of Conflicts (previously raised as claim 6 of state habeas petition)

Claim 7 - Ineffective Assistance of Trial Counsel - Failure to Investigate and Present Mental

Defenses at the Guilt Phase (previously raised as part of claim 7 of state habeas petition)

Claim 8 - Ineffective Assistance of Trial Counsel - Failure to Challenge Torture Special

Circumstance (previously raised as claim 8 of state habeas petition)

Claim 9 - Ineffective Assistance of Trial Counsel - Failure to Investigate and Present Evidence of Petitioner's Mental Incompetence at Trial (previously raised as claim 9 of state habeas petition)

Claim 10 - Ineffective Assistance of Trial Counsel - Alibi Defense (previously raised as claim 10 of state habeas petition)

Claim 11 - Ineffective Assistance of Trial Counsel - Performance in Selecting the Jury (previously raised as claim II on direct appeal and claim 11 of state habeas petition)

Claim 12 - Ineffective Assistance of Trial Counsel - Witness Latonya Wadley (previously raised as claim 12 of state habeas petition)

Claim 13 - Ineffective Assistance of Trial Counsel - Failure to Move for Mistrial on Juror's Outof-Court Experiment (previously raised as claim 13 of state habeas petition)

Claim 14 - Ineffective Assistance of Trial Counsel - Failure to Investigate and Present Mitigation

Evidence at the Penalty Phase (previously raised as part of claim 7 of state habeas petition)

Claim 15 - Ineffective Assistance of Trial Counsel - Failure in Presenting Evidence on Petitioner's

Life in Custody (previously raised as claim IV on direct appeal)

Claim 16 - Ineffective Assistance of Trial Counsel - Failure to Investigate Uncharged Carlton

Rape (previously raised as claim 14 of state habeas petition)

Claim 17 - Ineffective Assistance of Trial Counsel - Testimony of Sarah Parker (previously raised as claim 15 of state habeas petition)

Claim 18 - Ineffective Assistance of Trial Counsel - Cumulative Effect (previously raised as claim

16 of state habeas petition)

Claim 19 - Brady Violation - Testimony of Investigator Cooksey (previously raised as claim 17 of state habeas petition)

Claim 20 - Brady Violation - Failure to Disclose Favorable Treatment Given to Witnesses

(previously raised as claim 18 of state habeas petition)

Claim 23 - Juror Misconduct - Juror Albarrin's Out-of-Court Experiment (previously raised as claim 20 of state habeas petition)

Claim 29 - State Delay in Appointing Counsel and Interference With Attorney-Client Relationship

(previously raised as claim 24 of state habeas petition)

Claim 30 - Ineffective Assistance of Appellate Counsel (previously raised as claim 25 of state habeas petition)

Claim 31 - Conflict of Interest of Appellate Counsel (previously raised as claim 26 of state habeas petition)

Claim 32 - State Supreme Court Erred in Failing to Find Trial Counsel Prejudicially Ineffective

During Voir Dire (previously raised as claim 27 of state habeas petition)

Claim 33 - State Supreme Court's Denial of Petitioner's Constitutional Rights (previously raised as claim 28 of state habeas petition)

IV. PROCEDURAL DEFAULT

Of the claims adjudicated in this Order, Respondent contends that Claims 7 ¶ K, 12, 13, 19, 20 and 23 are procedurally barred. The Court has previously concluded that Claims 7 ¶ K, 12, 13 and 20 were denied by the California Supreme Court solely on the merits, and that there are no procedural bars to prevent the Court's review of those claims on the merits. (Doc. No. 88 at 35.) Claims 19 and 23 may be procedurally defaulted, however.*fn3

Established precedent in this Circuit dictates that a court's decision on the issue of procedural default is to be informed by furthering "the interests of comity, federalism, and judicial efficiency." Boyd v. Thompson, 147 F.3d 1124, 1127 (9th Cir. 1998). Thus, where, as here, deciding the merits of a claim proves to be less complicated and less time-consuming than adjudicating the issue of procedural default, a court may exercise discretion in its management of the case to reject the claims on their merits and forgo an analysis of cause and prejudice. See Batchelor v. Cupp, 693 F.2d 859, 864 (9th Cir. 1982); see also Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002) (citing Lambrix v. Singletary, 520 U.S. 518, 525 (1997)).

As set forth below, Claims 19 and 23 fail on their merits. Accordingly, the Court declines to reach the issue of whether they are procedurally defaulted. While the Court acknowledges that it could not grant relief on a claim found to be procedurally defaulted absent a showing of cause and prejudice or a fundamental miscarriage of justice, it is not prevented from addressing the merits of these claims and denying them based on a merits review.

V. STANDARDS OF REVIEW AND CLEARLY ESTABLISHED LAW

A. Standard of Merits Review

Title 28, United States Code, § 2254(a), sets forth the following scope of review for federal habeas corpus claims:

The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.

28 U.S.C.A. § 2254(a) (West 2006) (emphasis added).

As Petitioner filed his request for appointment of counsel and stay of execution on February 15, 2008 and filed his petition with this Court on January 13, 2009, the Anti-terrorism and Effective Death Penalty Act of 1996 ["AEDPA"] applies to his case. See Lindh v. Murphy, 521 U.S. 320, 336 (1997) (holding that the provisions of AEDPA "generally apply only to cases filed after the Act became effective" on April 24, 1996.)

Relevant to this case are the changes AEDPA rendered to 28 U.S.C. § 2254(d), which now reads:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the 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.A. § 2254(d)(1)-(2) (West 2006).

A decision is "contrary to" clearly established 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, and reaches a different result. See Williams v. Taylor, 529 U.S. 362, 413 (2000). A decision involves 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.; Bruce v. Terhune, 376 F.3d 950, 953 (9th Cir. 2004).

Even when the federal court undertakes an independent review of the record in the absence of a reasoned state court decision, the federal court must "still defer to the state court's ultimate decision." Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002). If the state court decision does not furnish any analytical foundation, the review must focus on Supreme Court cases to determine "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. 2001). Federal courts also look to Ninth Circuit law for persuasive authority in applying Supreme Court law, and to determine whether a particular state court decision is an "unreasonable application" of Supreme Court precedent. Davis v. Woodford, 384 F.3d 628, 638 (9th Cir. 2004). "A state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, 562 U.S. ___, 131 S.Ct. 770, 786 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).

Of the claims adjudicated in this Order, Claims 1-14, 16-20, 23, and 29-33 were each denied on the merits by the California Supreme Court in an October 2007 Order which stated in relevant part:

The petition for writ of habeas corpus, filed June 19, 2000, is denied. All claims are denied on the merits. Except insofar as they assert ineffective assistance of trial counsel, Claims 21, 22, and 23 [Claims 24, 25, and 26 in the federal Petition] are barred under In re Dixon (1953) 41 Cal.2d 756, 759 because they could have been, but were not, raised on appeal. Except insofar as they assert ineffective assistance of trial counsel, Claims 17, 19, and 20 [Claims 19, 21, and 23 in the federal Petition] are barred under In re Seaton (2004) 34 Cal.4th 193, 199-200 because they were not properly preserved in the trial court. George, C.J., was absent and did not participate. (Lodgment No. 19.)

Because these Claims were denied on the merits without a statement of reasoning, the Court will conduct an independent review of the record with respect to Claims 1-14, 16-20, 23 and 29-33 in order "to determine whether the state court clearly erred in its application of Supreme Court Law." See Pirtle, 313 F.3d at 1167; see also Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000) (in the absence of a reasoned decision by the state court, "[o]nly by [an independent review of the record] may we determine whether the state court's decision was objectively unreasonable.") With respect to the remaining claims, which as set forth in the discussion of Claims 11*fn4 and 15, the state supreme court denied in a reasoned decision, the Court will determine whether that adjudication was contrary to, or an unreasonable application of, clearly established federal law, or whether it was based upon an unreasonable determination of the facts.

B. Standard for Evidentiary Hearing

AEDPA also limited the circumstances under which district courts may grant an evidentiary hearing. Section 2254(e)(2) provides:

If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing unless the applicant shows that-- (A) the claim relies on--

(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or

(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and

(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.

28 U.S.C.A. § 2254(e)(2) (West 2006).

Under AEDPA, when determining whether to grant an evidentiary hearing, the district court

must first ascertain whether the petitioner has failed to develop the factual basis of a claim in state court. Insyxiengmay v. Morgan, 403 F.3d 657, 670 (9th Cir. 2005). As explained by the Supreme Court:

For state courts to have their rightful opportunity to adjudicate federal rights, the prisoner must be diligent in developing the record and presenting, if possible, all claims of constitutional error. If the prisoner fails to do so, himself or herself contributing to the absence of a full and fair adjudication in state court, § 2254(e)(2) prohibits an evidentiary hearing to develop the relevant claims in federal court, unless the statute's other stringent requirements are met.

Williams v. Taylor, 529 U.S. 420, 437 (2000).

If the petitioner has not failed to develop the facts in state court, an evidentiary hearing is required if (1) the petitioner establishes a colorable claim for relief -- i.e., petitioner alleges facts that, if proven, would entitle him to habeas relief; and (2) the petitioner did not receive a full and fair opportunity to develop those facts. Earp v. Ornoski, 431 F.3d 1158, 1167 (9th Cir. 2005). The second requirement is met by a showing that:

(1) the merits of the factual dispute were not resolved in the state hearing; (2) the state factual determination is not fairly supported by the record as a whole; (3) the fact-finding procedure employed by the state court was not adequate to afford a full and fair hearing; (4) there is a substantial allegation of newly discovered evidence; (5) the material facts were not adequately developed at the state-court hearing; or (6) for any reason it appears that the state trier of fact did not afford the habeas applicant a full and fair hearing.

Townsend v. Sain, 372 U.S. 293, 312 (1963), overruled on other grounds by Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992).

However, the United States Supreme Court recently held that for claims previously decided on the merits by a state court a federal habeas court's "review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits." Cullen v. Pinholster, 563 U.S. ___, 131 S.Ct. 1388, 1398 (2011). The Supreme Court also noted that "[a]lthough state prisoners may sometimes submit new evidence in federal court, AEDPA's statutory scheme is designed to strongly discourage them from doing so." Id. at 1401. Under Pinholster, it does not serve the interests of judicial economy to grant or hold an evidentiary hearing prior to conducting a review under section 2254(d). The Court will therefore conduct a section 2254(d) review concurrent with the evaluation of whether Petitioner's federal habeas claims warrant an evidentiary hearing.

C. Ineffective Assistance of Counsel

In Claims 7-18 and 30, Petitioner alleges multiple instances of ineffective assistance of trial and state appellate counsel. Generally, to prevail on a claim alleging ineffective assistance of counsel, a petitioner must demonstrate (1) that counsel "made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment," and (2) that "the deficient performance prejudiced the defense." Campbell v. Wood, 18 F.3d 662, 673 (9th Cir. 1995) (quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)).

To establish deficient performance, Petitioner must demonstrate that the representation he received "fell below an objective standard of reasonableness." Strickland, 466 U.S. at 688. Moreover, due to the difficulties inherent in evaluating the contested behavior from counsel's perspective at the time, there exists a strong presumption that counsel's conduct "falls within the wide range of reasonable professional assistance." Id. at 689. Thus, Petitioner must overcome the presumption that the challenged action might be considered sound trial strategy. Id.

To establish prejudice, Petitioner must demonstrate that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. In addition, individual deficiencies that may not by themselves meet the Strickland prejudice standard may, when considered cumulatively, constitute sufficient prejudice to justify granting the writ. Harris v. Wood, 64 F.3d 1432, 1438 (9th Cir. 1995).

The process of determining penalty phase prejudice requires courts to "evaluate the totality of the available mitigation evidence -- both that adduced at trial, and the evidence adduced in the habeas proceeding -- in reweighing it against the evidence in aggravation." Williams (Terry Williams) v. Taylor, 529 U.S. 362, 397-98 (2000). A court "must carefully weigh the mitigating evidence (both that which was introduced and that which was omitted or understated) against the aggravating evidence," and then determine whether there is a reasonable probability that the sentencer "would have concluded that the balance of the aggravating and mitigating circumstances did not warrant death." Mayfield v. Woodford, 270 F.3d 915, 928 (9th Cir. 2001) (quoting Strickland, 466 U.S. at 695).

Moreover, when a federal habeas court is reviewing a claim of ineffective assistance of counsel previously adjudicated on the merits by a state court, the Supreme Court has recently reasserted that:

The pivotal question is whether the state court's application of the Strickland standard was unreasonable. This is different from asking whether defense counsel's performance fell below Strickland's standard. Were that the inquiry, the analysis would be no different than if, for example, this Court were adjudicating a Strickland claim on direct review of a criminal conviction in a United States district court. Under AEDPA, though, it is a necessary premise that the two questions are different. For purposes of § 2254(d)(1), "an unreasonable application of federal law is different from an incorrect application of federal law." Williams, supra, at 410, 120 S.Ct. 1495. A state court must be granted a deference and latitude that are not in operation when the case involves review under the Strickland standard itself.

Richter, 131 S.Ct. at 785.

With respect to Claims 1-20, 23, 29, and 32-33, Petitioner contends that to the extent these claims could have been raised by state appellate counsel, he was denied his right to the effective assistance of counsel on appeal. As with the above standard, in order to warrant relief, Petitioner must demonstrate that appellate counsel's failure to raise these issues on appeal constitutes an error so serious that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694.

However, it is well-established that when filing an appeal, "counsel has no constitutional obligation to raise every non-frivolous issue requested by the defendant." Miller v. Keeney, 882 F.2d 1428, 1434 (9th Cir. 1989) (citing Jones v. Barnes, 463 U.S. 645, 751-54 (1983)). Moreover, the Ninth Circuit has held that "[t]he failure to raise a meritless legal argument does not constitute ineffective assistance of counsel." Baumann v. United States, 692 F.2d 565, 572 (9th Cir. 1982); see also Boag v. Raines, 769 F.2d 1341, 1344 (9th Cir. 1985).

D. Conflict of Interest

In Claims 1-6 and 31, Petitioner asserts multiple instances of trial and appellate counsel's conflicts of interest that affected their representation. To establish an ineffective assistance of counsel claim based on a conflict of interest, he must demonstrate that: (1) counsel actively represented conflicting interests and, (2) an actual conflict of interest adversely affected counsel's performance. Cuyler v. Sullivan, 446 U.S. 335, 348-50 (1980). In contrast to a general claim of ineffective assistance of counsel, if he is able to satisfy both prongs under Sullivan, prejudice is presumed. See id. at 349-50 (a petitioner who can demonstrate "that a conflict of interest actually affected the adequacy of his representation need not demonstrate prejudice") (citing Holloway v. Arkansas, 435 U.S. 475, 487-91 (1978)).

An attorney's simultaneous representation of multiple defendants may give rise to a conflict of interest, as can a case of successive representation. Mannhalt v. Reed, 847 F.2d 576, 580 (9th Cir. 1988). While the Supreme Court has found that the applicability of Sullivan to attorney ethical conflicts remains an open question, the Court recognized that circuit courts have applied it "unblinkingly" to a wide variety of alleged conflicts. See Mickens v. Taylor, 535 U.S. 162, 174 (2002); see also Earp v. Ornoski, 431 F.3d 1158, 1184 fn. 23 (9th Cir. 2005) (collecting cases). For instance, the Ninth Circuit has held that an attorney's private financial interests may constitute an actual conflict of interest. See United States v. Hearst, 638 F.2d 1190, 1194-95 (9th Cir. 1980) (attorney's private book deal regarding client's case created a potential conflict of interest); Quintero v. United States, 33 F.3d 1133, 1135 (9th Cir. 1994) (attorney accepting compensation for representation from a third party created a potential conflict of interest).

To establish the second prong under Sullivan, Petitioner must demonstrate that the conflict actually "affected the counsel's performance, as opposed to a mere theoretical division of loyalties." Mickens, 535 U.S. at 171. In other words, he must show that "some effect on counsel's handling of particular aspects of the trial was 'likely.'" United States v. Miskinis, 966 F.2d 1263, 1268 (9th Cir. 1992). The Ninth Circuit has clarified that the adverse effect "must be one that significantly worsens counsel's representation of the client before the court or in negotiations with the government," reasoning that a conflict limited to causing problems in the attorney-client relationship but without a significant impact on counsel's representation is insufficient to constitute an adverse effect under Sullivan. United States v. Mett, 65 F.3d 1531, 1535-36 (9th Cir. 1995).

VI. DISCUSSION

The claims adjudicated in this Order consist of numerous allegations against trial counsel, including fraud, conflicts of interest, and ineffective assistance in investigating and preparing for trial, during voir dire, and at the guilt and penalty phases of Petitioner's trial. Petitioner also alleges Brady error, prosecutorial misconduct, juror misconduct, and he asserts multiple claims of error by state appellate counsel and the state supreme court.

Petitioner moves for an evidentiary hearing on Claims 1-20, 23, and 30-33, but does not seek an evidentiary hearing on Claim 29. Respondent seeks the denial and dismissal of all claims in the federal petition without an evidentiary hearing.

A. Claim 1 - Fraud of Trial Counsel - Obtaining and Using Defense Funds

In Claim 1, Petitioner contends that lead defense counsel "(a) fraudulently obtained funds under Penal Code section 987.9, (b) committed perjury in order to mislead the court into granting funds, and (c) failed to use for the defense substantial funds provided by the court," and that second chair counsel "failed to apprise the court and client of the fraud and misconduct upon learning of same," which deprived Petitioner of his rights under the Fifth, Sixth, Eighth and Fourteenth Amendments. (Pet. at 9.) He primarily relies on the declarations of three individuals: Elizabeth Barranco, Richard Kharas and Jo-Ellan Dimitrius.

Elizabeth Barranco, second chair trial counsel, asserts that the court funds for the defense investigator and law clerks were used inappropriately. Ms. Barranco states that in 1987, lead counsel Logan McKechnie told her that the large sums needed for investigation were being spent on investigation into a series of fifty-five robberies, named the "Tall Black Male" series. (Exhibit 3 to Petition ["Ex."] at ¶ 13.) She states that because Petitioner had been charged with several robberies in the series, the defense initially hoped to "disprove petitioner was the 'Tall Black Male' by thoroughly investigating the robberies that were charged along with those that weren't," but the charged robberies were eventually deleted from an amended information filed on January 6, 1989. (Id.) She asserts that the money used to pay investigator Charles H. Small "was simply an excuse and that little if no work was being done to investigate the Tall Black Male series." (Id. at ¶ 14.) Ms. Barranco also alleges that some investigative funds were being directed to investigator Small's wife to "type up transcripts of the various tape recorded interviews provided in discovery," which was "unnecessary since the DA's office also provided transcripts," and that when her law clerks applied for approved payments "the account was dry due to payments to Small." (Id.) Ms. Barranco also alleges that when Small accompanied her on several productive investigative trips, "it became apparent that Mr. Small was suggesting travel to various places for the sole purpose of earning easy money and not for any reason necessary to the case," and states that on several trips, Small overbilled on per diem charges. (Id. at ¶ 17-18.)

Richard Kharas, who worked as a law clerk for lead counsel Logan McKechnie from 1987 to 1989, states in a 1999 declaration that he never worked on Petitioner's case, but learned through "documents submitted to me by Petitioner's investigator, and habeus [sic] counsel, that Logan had falsely billed my time on the Bemore case." (Ex. 4 at ¶ 10-11.) Mr. Kharas asserts that the over $7,000 in bills submitted to the court in his name "was completely fraudulent and perjurious on Logan's part; I never spent so much as one minute on the case." (Id. at ¶ 11.) Records submitted by habeas counsel show disbursements to Kharas totaling $7,642.00. (Ex. 2.)

Jury consultant Jo-Ellan Dimitrius states that Mr. McKechnie advised her that she could "tack on" hours to her billing, and when she declined he said, "It does not matter. It is state money." (Ex. 17 at ¶ 18.) Mr. McKechnie initially suggested a hotel room for her stay in San Diego during the trial, but Ms. Dimitrius felt the hotel was too expensive, and relocated to less costly accommodations. (Id.)

Petitioner asserts that "[t]he fraudulent billing of defense counsel deprived Petitioner of the meaningful utilization of the funds ordered for his defense" and caused harm, such as:

a. Depriving Petitioner of "funds essential for investigative and expert services;"

b. Denying Petitioner the "right to conflict-free counsel;"

c. Counsel failed to "adequately investigate and refute the prosecution's evidence and arguments presented at the guilt phase;"

d. Counsel "failed to present any defense to the torture-murder special circumstance, even though that was successfully done in the prior trial of the co-defendant;"

e. Counsel failed to pursue an investigation "for the purpose of combating the torture-murder allegation;"

f. "There were insufficient funds available to utilize the available experts who testified in the Cosby case that there was a reasonable doubt as to the torture-murder special circumstance;"

g. "There were insufficient funds for the employment and utilization of mental-state experts to establish that Petitioner lacked the requisite intent to justify the finding of the torture-murder special circumstance as true;"

h. Counsel "failed to investigate and develop available mental defenses that Petitioner did not have the requisite intent for first degree murder or robbery, and that he was legally insane;"

i. Counsel "did not have the necessary to employee [sic] and call as witnesses essential psychiatric, psychological, neuropsychological and neurological experts;" and

j. "There were insufficient funds to investigate and present facts which would have established the available mental defenses."

(Pet. Brief at 38-39.)

Extensive as this list is, Petitioner fails to show that any of the alleged failures on the part of trial counsel are actually attributable to a lack of funding. Whether the Court examines Petitioner's contentions under the rubric of conflict of interest*fn5 or ineffective assistance of counsel,*fn6 he fails to offer any facts indicating that the alleged fraud had a demonstrable affect on the quality of his representation at trial.

Petitioner fails to even offer reasoned support for his speculative assertions of harm. For instance, while Petitioner asserts that there were insufficient funds available to employ the use of expert witnesses or investigative work regarding the torture special circumstance or mental state issues, he utterly fails to provide any factual support for these contentions. In fact, there is no evidence before this Court that any defense requests for expert or investigative assistance were denied due to a lack of available funds.*fn7 To the contrary, a document submitted by Petitioner entitled "987.9 Fund Final Accounting" lists disbursements to eight individuals classified as "Expert" under "Type of Service." (Ex. 2.) These individuals include: Dr. Charles Petty, Dr. Kenneth Fineman, Ph.D., Jo-Ellan Dimitrius, Isabel Wright, Ph.D., Steven Bucky, Ph.D., Dr. James McSweeney, Faye Girsh, and an individual identified only as Scott. (See id.) The record also belies Petitioner's contention that there were insufficient funds for multiple avenues of investigation. According to the fund accounting, while the bulk of investigative funds were paid to Charles Small, disbursements for investigative services were also made to seven other individuals or firms. (See id.)

The information provided by second counsel likewise does not support Petitioner's contention that a lack of funding was the reason for, or a contributing factor in, any failure to present mental defenses. Instead, Ms. Barranco states that a "lack of experience regarding the presentation of mental health evidence caused me to abandon my initial inquiry into petitioner's mental health condition." (Ex. 3 at ¶ 8.) And, while anecdotal information provided by Ms. Dimitrius and Ms. Barranco suggests that lead counsel McKechnie and investigator Small indulged freely in court-provided funds that were intended for preparing for and conducting Petitioner's defense at trial, at no point in her thirteen page declaration does Ms. Barranco allege that certain avenues of investigative or expert assistance were discarded or abandoned due to a lack of funding. Not only does Petitioner fail to offer any evidence that requests for funding were denied due to a lack of available funds, but he fails to provide timesheets, work logs, or other means of factual support for his unsubstantiated allegation that the investigator and lead counsel were fraudulently billing and siphoning money from Petitioner's case for their own personal use.

The Court acknowledges that the information regarding Mr. Kharas, taken as true, evinces billing improprieties, but that does not establish that the wrongful disbursement of less than $8,000 of the $293,678.18 spent by Petitioner's defense team left counsel with insufficient funds for investigation or expert assistance in this case. Even given the indication that some of the funds may not have been used as intended, Petitioner has failed to demonstrate that he was prejudiced by counsel's actions. See Strickland, 466 U.S. at 687. Asserting that he was deprived of "essential" services due to lead counsel's actions, without offering any facts tending to show that the alleged financial irregularities contributed to, or caused, the deficient acts alleged, is insufficient to state a colorable claim for relief. See James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994) ("Conclusory allegations which are not supported by a statement of specific facts do not warrant habeas relief."). The California Supreme Court's rejection of this claim was not an objectively unreasonable application of clearly established federal law. Because Claim 1 fails to state facts which, if true, would entitle Petitioner to habeas relief, an evidentiary hearing is not warranted. See Earp, 431 F.3d at 1167.

B. Claim 2 - Conflict of Interest of Trial Counsel - Misappropriation of Funds

In Claim 2, relying on similar allegations as Claim 1, Petitioner asserts that lead trial counsel had a conflict of interest as he "fraudulently obtained defense funds from the court which he converted to his own personal use, rather than to the benefit of his client's defense," and states that "[b]y diverting the funds from use on behalf of Petitioner to his personal use, the attorney rendered it impossible for essential defenses to be developed and presented." thereby violating Petitioner's rights under the Fifth, Sixth, Eighth and Fourteenth Amendments. (Pet. Brief at 41; Pet. at 23.)

Even assuming that counsel's alleged diversion of funds could prove to be an actual conflict of interest, Petitioner has not demonstrated that any such alleged conflict had an adverse impact on counsel's performance. See Sullivan, 446 U.S. at 348-50.

To support this claim, Petitioner reiterates the facts alleged in support of Claim 1. (Pet. Brief at 41-46.) He attempts to demonstrate an adverse impact by generally alleging that the fraudulent billing by lead counsel deprived Petitioner of funds for his defense, resulting in counsel's failure to (1) pursue multiple avenues of investigation and (2) utilize the assistance of experts. Petitioner also asserts that due to the conflict of interest, counsel did not investigate and refute the prosecution's case-in-chief, and failed to undertake an investigation to combat the torture murder allegation. (Pet at 34.) Claim 2 suffers from the same deficiencies in pleading identified in Claim 1, as no factual support is offered for Petitioner's assertion that any failure to investigate these avenues was due to a lack of available funds, or bears any connection to the alleged financial improprieties of lead counsel.

Petitioner also claims that there were "insufficient funds available" to utilize experts that had previously testified in the Cosby case regarding the torture murder special circumstance or to retain mental health experts to testify regarding Petitioner's lack of intent or legal insanity. (Pet at 35.) Yet, again, Petitioner does not demonstrate that the failure to retain these experts is attributable to a lack of funds. Nor does he establish that it was lead counsel's financial conflict of interest that prevented the retention of expert witnesses, rather than a tactical decision by counsel, or even the ineffective assistance of counsel, as discussed in Claim 8.

As such, based on an independent review of the record, this Court concludes that the California Supreme Court's rejection of this claim was not an objectively unreasonable application of clearly established federal law. Thus, neither an evidentiary hearing or habeas relief is warranted.

C. Claim 3 - Conflict of Interest of Trial Counsel - Fraud of Investigator Small

Petitioner's third claim asserts that lead counsel "had a conflict of interest because he tolerated the fraud of his subordinate, Charles H. Small, in order to conceal his infidelity from his wife." (Pet. at 36.) The effect of this alleged chicanery, according to Petitioner, was to deprive him of "essential investigative and expert services, and, viable guilt phase, special circumstance and penalty-phase defenses," in violation of his rights under the Fifth, Sixth, Eighth and Fourteenth Amendments. (Id.)

Ms. Barranco relates an incident in which she asserts Mr. Small set up a trip out of state in order to justify fees, and indicates that Mr. Small often overstated or double-billed per diem amounts. (Ex. 3 at ¶¶ 17-18.) Ms. Barranco also states that she discovered Mr. Small "was paid in advance from the general trust account" by Mr. McKechnie, and Small would then "turn in post dated bills equaling the amount he was paid," and asserted that his work "clearly did not justify the huge payments he was receiving." (Id. at ¶ 19.) In her declaration, Ms. Barranco also explains that:

When I again confronted Logan regarding my suspicions about Small's fraudulent billing practices, Logan confided in me that he was aware of Small's improprieties. Logan stated that he continued to tolerate Small because the investigator knew that Logan had cheated on his wife, Barbara, on some business trip the two had taken. Logan was afraid that Small would reveal this information to his wife if crossed. (Id. at ¶ 20.) Petitioner maintains that "[t]he investigator was submitting false bills that were knowingly accepted and paid by Mr. McKechnie. Small was paid a total of $145,851.81 for Bemore, nearly half of the $293,678.18 advanced to Mr. McKechnie by the court under section 987.9. It was for 5,800 hours of work, much of which was never performed." (Pet. Brief at 51.)

Here again, Petitioner has not produced evidence in support of his contention that "much of" the work billed by Mr. Small was not actually performed. Petitioner has provided the Court with two spreadsheets listing payment amounts made to investigator Small and other service providers (see Ex. 1 and 2), but the submitted documentation does not contain any itemized lists of tasks or billing that would indicate what work Mr. Small is alleged to have completed, or to have fraudulently billed to the trial court without completing. The Court simply cannot conclude that the billing was fraudulent based only on the vague and generalized assertions offered here. At any rate, Petitioner's claim is without merit because he has not shown that there is any connection between any allegedly fraudulent billing and the quality of counsel's representation at trial.

Repeating the arguments made in support of Claims 1 and 2, Petitioner attempts to demonstrate an adverse impact by generally alleging that fraudulent billing by investigator Small and lead counsel McKechnie deprived Petitioner "of funds for essential investigative and legal services," which resulted in counsel's failure to both pursue multiple avenues of investigation and to utilize the assistance of experts. (Pet. at 38.) He also repeats the assertion that due to this alleged conflict of interest, the defense failed to investigate and refute the prosecution's case-in-chief, failed to undertake an investigation to combat the torture murder allegation, and failed to retain mental health experts. (Id.) And, as with the prior claims, there is no showing that counsel's failure to investigate certain potential avenues of defense or retain expert assistance was attributable to a lack of available funds caused by Small's allegedly fraudulent billing.

Having independently reviewed the record, the Court concludes that the California Supreme Court's rejection of this claim was not an objectively unreasonable application of clearly established federal law. Conclusory allegations that Petitioner was deprived of "essential" investigative and legal services due to lead counsel's conflict is insufficient to state a colorable claim for relief. See James,

24 F.3d at 26. No evidentiary hearing is warranted, nor does this claim merit habeas relief.

D. Claim 4 - Conflict of Interest of Trial Counsel - Gambling Habit of Lead Counsel

In Claim 4, Petitioner alleges that lead counsel had a gambling addiction which constituted an actual conflict of interest, and as a result, counsel neglected to adequately investigate and prepare Petitioner's defense at trial and lied to his client about the trial preparation and defense, in violation of Petitioner's rights under the Fifth, Sixth, Eighth and Fourteenth Amendments. (Pet. at 39.)

McKechnie was known to spend time and money at a card room run by a client named Mary. (See Ex.7, Decl. of legal secretary Gloria Work.) Law clerk Richard Kharas first met Mr. McKechnie at Mary's card room, noted that "Logan was primarily a daytime player, usually Monday through Friday during working hours," that McKechnie "lost consistently, often as much as $300 to $500 at one sitting," and that McKechnie also played cards at several other gambling establishments where he also lost consistently. (Ex. 4 at ¶¶ 7-8.) Mr. Kharas also attended two all-night poker games where Mr. McKechnie lost $2000 and $5500. (Id. at ¶ 9.) Mr. Kharas believed that McKechnie "was committing major billing fraud to provide funds for his gambling addiction, and to pay for his lavish lifestyle." (Id. at ¶ 11.)

Petitioner intimates that McKechnie gambled away some of the money he received for the defense of his case. (Pet. Brief at 54-55; see also Ex. 1.) However, aside from the information indicating that Mr. McKechnie may have billed over $7,000 under Mr. Kharas' name for work not performed by Mr. Kharas (see Ex. 4), Petitioner provides no support for his contention that a "substantial amount" of the over $293,000 billed was not used as intended.*fn8 The information regarding the Kharas billing is troubling, but Petitioner has not shown that this incident bears any connection to Mr. McKechnie's gambling, or that it resulted in prejudice to Petitioner.

In particular, Petitioner asserts that counsel "deceived and lied to the client," and details a list of counsel's failings allegedly resulting from his gambling activities, including:

a. Claiming he was working on the case, when in fact he devoted little time to it other than court appearances;

b. Repeatedly stating that [Petitioner] would be acquitted and 'walk,' meaning Petitioner would be acquitted of the charges;

c. Telling [Petitioner] that the planned false alibi evidence would win, when it clearly was doomed to failure;

d. Concealing from Petitioner the results of a psychological evaluation reflecting that he suffered from significant mental disorders;

e. Not disclosing to [Petitioner] that the discovery material contained evidence of mental illness;

f. Failing to ascertain the full expert [sic] of Petitioner's mental disorders. Not investigating and preparing available mental defenses;

g. Giving Petitioner the understanding that the only available defense at the guilt phase was a weak and false alibi;

h. Concealing from [Petitioner] that there were other guilt-phase defenses available to him;

i. Depriving Petitioner of an informed and knowing choice as to guilt-phase defenses [and] failing to investigate and prepare defenses to the torture special-circumstance charge;

j. Not attending and becoming knowledgeable as to the defense evidence, testimony and experts presented in the prior trial of the co-defendant, against whom the special circumstances were not found true;

k. Leading Petitioner to believe that he was in command of the case facts and

legal issues, when in actuality he was not;

l. Failing to inform [Petitioner] that he was entitled to conflict-free counsel. (Pet. Brief at 52.) Petitioner asserts that because of his alleged gambling addiction, lead counsel "made no reasonable effort to prepare or investigate the facts and law of Petitioner's case," including an alleged failure to read the discovery materials, prepare and adequately conduct jury selection, and competently prepare and present a viable guilt phase defense, defense to the special circumstances, and a viable penalty phase defense. (Pet. at 41.) Again, however, no demonstrable connection has been shown between lead counsel's gambling and any alleged deficiencies in his representation of Petitioner. Petitioner's assertion that Mr. McKechnie "was not a successful gambler, and suffered heavy losses" does not compel the conclusion that he used Petitioner's case as a "cash cow," as Petitioner indicates. (Pet. Brief at 54.) As with the prior claims of conflict of interest, Petitioner fails to demonstrate that the alleged inadequacies of lead counsel are reasonably attributable to his propensity for gambling.

The state court's rejection of this claim was not an objectively unreasonable application of clearly established federal law. There is no evidence that McKechnie's gambling constituted a genuine conflict of interest, nor that the lawyer's gambling activities actually "affected [his] performance." Mickens, 535 U.S. at 171. Having independently reviewed the record, Petitioner is not entitled to habeas relief on Claim 4. An evidentiary hearing is not warranted on this claim.

E. Claim 5 - Conflict of Interest of Trial Counsel - Racism of Lead Counsel

In Claim 5, Petitioner, who is African-American, contends that McKechnie had a conflict of interest due to his racism against African-Americans, rendering it "impossible for McKechnie to effectively represent [him]," in violation of his rights under the Fifth, Sixth, Eighth and Fourteenth Amendments. (Pet. at 49.)

Second chair trial counsel Elizabeth Barranco asserts that:

Logan and Charlie Small were also prejudiced against black people. I remember Logan and Small making racial jokes about an investigator, Jim Murphy, who is African-American. On the times when we traveled to petitioner's boyhood neighborhood in South Central Los Angeles, Small would frequently irritate me with the racist comments he made about the people we would see walking down the street. In my opinion Logan and Small's feelings toward black people prevented them from investigating prosecution witnesses who were African American because they did not want to be around them. I think it also affected the way the client testified. Petitioner told me that just before he took the witness stand, Logan leaned over and whispered to him, "Just don't act like a nigger" or words to that effect. I remember that petitioner found this statement unnerving enough to tell me about it later. (Ex. 3 at ¶ 26.)

Significantly, however, Petitioner fails to identify any witnesses lead counsel or his investigator failed to interview, fails to articulate what information those witnesses could have provided, and fails to indicate how such information would have assisted in his defense. In other words, the claim fails because Petitioner fails to establish that the asserted conflict affected the adequacy of his representation. Sullivan, 446 U.S. at 348-50.

The only evidence of the epithet Mr. McKechnie allegedly used in speaking to Petitioner is Ms. Barranco's second-hand statement. Assuming the truth of her assertion, racist remarks, in certain contexts, may constitute a genuine conflict of interest. See Frazer v. United States, 18 F.3d 778, 783-85 (9th Cir. 1994) (reversing and remanding denial of relief with instructions to hold an evidentiary hearing, where attorney called defendant a "stupid nigger son of a bitch" and threatened to be ineffective if defendant insisted on going to trial, as counsel's behavior fell below constitutionally required standards.) Yet, Petitioner's situation is distinguishable from Frazer. There, the racial epithet was part of a verbal assault against the defendant, and was accompanied by a direct and particularized threat of substandard legal representation. No such threat, or verbal assault, is alleged here.

Moreover, the account of the incident is vague. Ms. Barranco states that Petitioner told her, an unspecified amount of time after the incident, that Mr. McKechnie either used a racial epithet in speaking to Petitioner "or words to that effect" just before Petitioner testified in his own defense. (Ex. 3 at ¶ 26.) The record shows that Ms. Barranco was in court the day Petitioner testified (see RT 24044), yet she does not assert that she heard any such remark first-hand. Petitioner, who submitted a declaration in support of the petition (see Ex. 65), has not offered an account of this exchange. Additionally, in contrast to the defendant in Frazer, Petitioner failed to make any motion to remove counsel from his case, nor did he offer any indication that he was uncomfortable with his representation after the alleged remark was supposedly uttered.

Given such a charged remark, one would expect a noticeable effect on the defendant, but there is none indicated in the trial record. Mr. McKechnie, who conducted Petitioner's direct examination, questioned Petitioner regarding prior employment with the Palo Alto Police Department and San Diego Humane Society, his Army service, and his drug use, and led Petitioner through an account of his whereabouts and actions on the day of the crime. Mr. McKechnie also questioned Petitioner extensively on his prior altercations and prior incarcerations. The trial record discloses no outward signs of Petitioner's animosity toward or discomfort with counsel and reflects that counsel conferred with Petitioner numerous times throughout the trial proceedings. Moreover, Petitioner's declaration, which does not mention the remark, does not assert that McKechnie's allegedly racist remark caused any deterioration in the attorney-client relationship.

For all these reasons, the Court concludes that the state court's rejection of this claim was not an objectively unreasonable application of clearly established law. Although Ms. Barranco states that the remark "affected the way the client testified," Petitioner himself does not support her conclusory assertion. As such, the claim does not establish a basis for habeas relief. See James, 24 F.3d at 26. Even were the Court to conclude that lead counsel and the defense investigator harbored prejudice against African-Americans that amounted to an actual conflict of interest, Petitioner has not shown that these attitudes had an adverse impact on the adequacy of counsel's representation. See Sullivan, 446 U.S. at 349-50. An evidentiary hearing is not warranted.

F. Claim 6 - Conflict of Interest of Trial Counsel - Cumulative Effect

In Claim 6, Petitioner asserts that the "cumulative effects of the conflicts of interest of Logan McKechnie, including his gambling, fraud and racism" deprived Petitioner of his rights guaranteed under the Fifth, Sixth, Eighth and Fourteenth Amendments. (Pet. at 51.)

In some cases, the "cumulative effect of multiple errors can violate due process even where no single error rises to the level of a constitutional violation or would independently warrant reversal." Parle v. Runnels, 505 F.3d 922, 927 (9th Cir. 2007) (citing Chambers v. Mississippi, 410 U.S. 284, 290 (1973)). Petitioner asserts that the cumulative effects of lead counsel's fraud and conflicts of interest violated Petitioner's constitutional rights. (Pet. Brief at 61.) However, as discussed in the resolution of Claims 1-5, Petitioner fails to demonstrate that counsel's fraud or alleged conflicts had any adverse impact on the quality of his representation. Because Petitioner fails to demonstrate that the alleged conflicts bear any connection to his trial performance, "there is nothing to accumulate to a level of a constitutional violation." Mancuso v. Olivarez, 292 F.3d 939, 957 (9th Cir. 2002) (citing Fuller v. Roe, 182 F.3d 699, 704 (9th Cir. 1999), overruled on other grounds by Slack v. McDaniel, 529 U.S. 473, 482 (2000)).

Accordingly, based on an independent review of the record, the California Supreme Court's rejection of this claim was not an objectively unreasonable application of clearly established federal law. An evidentiary hearing is not warranted on Claim 6.

G. Claims 7 and 14 - Ineffective Assistance of Trial Counsel - Failure to Investigate and Present Mental Defenses at the Guilt Phase and Mitigation Evidence at the Penalty Phase In Claim 7, Petitioner alleges that trial counsel: (1) failed at "the guilt and special circumstance phase, and penalty phase" to properly "advise Petitioner of the availability of viable mental defenses," including the defense of his "inability at the time of the homicide to form the required mental state to be guilty of murder and robbery;" (2) failed to "investigate and present the defense of insanity;" and (3) failed to "request related instructions," violating Petitioner's rights under the Fifth, Sixth, Eighth and Fourteenth Amendments.(Pet. at 52.)*fn9 In Claim 14, Petitioner asserts that defense counsel was prejudicially ineffective for "failing to investigate, discover and present evidence of mental illness, learning disabilities, social history and other issues in mitigation" during the penalty phase, violating his rights under the Fifth, Sixth, Eighth and Fourteenth Amendments. (Pet. at 136.) The central contention of both claims is that trial counsel had ample evidence of Petitioner's compromised mental state, yet failed to develop and present it at either the guilt or penalty phases of trial.

1. Factual Background Pertaining to Claims 7 and 14

At the behest of defense counsel Barranco, Petitioner underwent several days of psychological testing in January and March 1988, administered by Dr. Kenneth Fineman and Mary Alambaugh, Ph.D. Ms. Barranco sought the services of Dr. Fineman based on an article about the "sun children" phenomenon, as follows:

Such people were described as members of minority groups coming from poor homes and gaining admission into the upper class "white" world by virtue of their talents. Where to most people they would appear to have been favored and thus have no excuse for subsequent criminal conduct, in fact, that behavior, most of which was drug related, was a product of the unique stress they experienced from having to live in two different worlds. I initially consulted with Dr. Fineman to see if petitioner fit the profile described in the news article I read. I thought he might because his personal history was consistent with what the article described. (Ex. 3 at ¶ 8.) After conducting the evaluation and testing, Dr. Fineman prepared a report and submitted it to Ms. Barranco. (See Ex. 8.) The report alighted counsel to "several diagnostic considerations," including "Bi-polar affective disorder," "intermittent explosive disorder," and "anti-social personality disorder," and acknowledged "[t]he fact that Mr. Bemore evidences a condition of mild, diffuse organic impairment further complicates the diagnostic picture. His impairment, it must be stressed, is quite mild and not discernable under ordinary conditions." (Id. at 15-17.) The report also indicated that Petitioner's "high energy level and restlessness would be consistent with a residual attention deficit disorder of adulthood" and that "[t]he pattern of subtle deficits of attention, motivation, speech perception, slowed psycho-motor responses and difficulty with spatial-localization suggest some mild neurological impairment of a diffuse nature," which Dr. Fineman reasoned could either be "a function of residual attention deficit disorder and accompanying learning disability or may be a function of other factors, including chronic drug use," as admitted by Petitioner. (Id. at 10.)

However, Dr. Fineman also indicated that the "[r]esults of personality testing reveal a man who, although casual and affable, is quite alert and subtly controlling," and stated that, "[u]nfortunately, beneath the surface warmth he has little regard for others, experiencing people as either objects or obstacles." (Id.) Dr. Fineman wrote that "[t]here is a potentially dangerous combination of fearlessness, lack of anxiety about consequences and need for immediate gratification, that put him at a high risk for acting out," and noted that Petitioner "can be quite self-centered and impulsive, using whatever means are necessary to achieve his desires." (Id. at 11.) Dr. Fineman also stated that Petitioner "is not frightened of his impulses, other people or the consequences of his actions. He is seldom bothered by feelings of guilt or anxiety," and noted that "Mr. Bemore will admit to feeling guilty about his failures as a husband and father but the only person he appears to be genuinely attached to was his mother who died when he was 8." (Id. at 12.) Ms. Barranco was "shocked" by the contents of the Fineman report, stating:

If I recall, it contained little if no mention of the "sun children" phenomenon and whether petitioner fit into that profile. Instead, it diagnosed him with some significant impairments that I thought were completely inapposite with the guilt and penalty phase defense and evidence we were planning on presenting at trial...

I was angry that the "sun children" idea that had initially drawn me to Dr. Fineman had been virtually ignored by him in his report. Still, I assumed that any other expert reviewing the Fineman test results would draw the same conclusions about my client. Those conclusions were contrary to Logan's defense that petitioner did not commit the homicide and my penalty phase plan to present him as a good guy with a drug problem, garnering whatever benefit I could from the lingering notion of reasonable doubt. I placed my copy of the Fineman report in the back of a file drawer and wished I'd never read it. No follow-up work was done by Dr. Fineman nor any other mental health expert.

I never showed petitioner Dr. Fineman's report and only discussed it with him in minimal detail. I did not relate to him any of Fineman's diagnoses. I remember simply telling him that the report was "bad" and something we needed to bury.

(Ex. 3 at ¶¶ 9-11.)

Dr. Fineman recounted his involvement in Petitioner's case in an October 19, 2000 declaration, stating that he presented Ms. Barranco with the rough draft evaluation in order to justify expected payments and the continuance of the evaluation. (Ex. 60 at ¶ 4.) Dr. Fineman explained that:

As I had found significant evidence of mental disorders, and other psychological dysfunctions, that could give rise to various mental defenses, I felt that with the rough draft in hand the counsel for Mr. Bemore would direct me to provide further investigation on the factors in my evaluation which were consistent with their defense strategies...

Since there was evidence of serious mental disorders, I informed trial counsel of the test results and advised that a guilt-phase defense of diminished capacity was possible in this case, but ...


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