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Dean Phillip Carter v. Kevin Chappell

March 18, 2013

DEAN PHILLIP CARTER,
PETITIONER,
v.
KEVIN CHAPPELL, ACTING WARDEN OF THE SAN QUENTIN STATE PRISON,
RESPONDENT.



The opinion of the court was delivered by: Hon. Roger T. BenitezUnited States District Judge

DEATH PENALTY CASE ORDER: (1) DENYING PETITIONER'S REQUEST FOR EVIDENTIARY DEVELOPMENT OF CLAIMS 1-5, 7, 13, 16.C AND 16.E OF THE SECOND AMENDED PETITION; (2) DENYING RESPONDENT'S REQUEST TO DISMISS CERTAIN CLAIMS ON THE BASIS OF PROCEDURAL DEFAULT; AND (3) DENYING HABEAS RELIEF ON CLAIMS 1-16

On January 3, 2012, Petitioner filed a 28 U.S.C. § 2254(d) Brief, contending that he is entitled to habeas relief on each claim contained in the Second Amended Petition. (Doc. No. 158.) On February 23, 2012, Respondent filed a Response to Petitioner's Section 2254 Brief, requesting dismissal of all claims contained in the Second Amended Petition with prejudice. (Doc. No. 162.) On March 9, 2012, Petitioner filed a Reply. (Doc. No. 163.) The Court has also considered the arguments set forth in the Second Amended Petition, Answer, Traverse, the briefings filed in support of, and in opposition to, Petitioner's Motion for an Evidentiary Hearing, as well as the supplemental briefs filed addressing the Supreme Court's decision in Cullen v. Pinholster, 563 U.S. ___, 131 S. Ct. 1388 (2011).

For the following reasons, and based on the arguments presented in the pleadings and at oral argument, the Court DENIES Petitioner's request for evidentiary development on Claims 1-5, 7, 13 16.C and 16.E in the Second Amended Petition, DENIES Respondent's request to dismiss certain claims on the basis of state procedural default, and DENIES habeas relief on Claims 1-16.

I. PROCEDURAL HISTORY

By an amended information filed on September 26, 1990, Petitioner Dean Phillip Carter was charged in the murder and robbery of Janette Cullins and the burglary of her home on April 13, 1984, and the forcible rape, forcible copulation, and robbery of Barbara S.*fn1 on March 25, 1984.

On May 22, 1991, Petitioner was convicted of one count of first-degree murder in violation of California Penal Code § 187(a), two counts of robbery in violation of Cal. Penal Code § 211, two counts of burglary under Cal. Penal Code § 459, one count of forcible rape under § 261(2), and one count of forcible oral copulation under Cal. Penal Code § 288(c). The jury further found that in the crimes against Ms. Cullins, Petitioner had personally inflicted great bodily injury in violation of Cal. Penal Code § 12022.7 and that in the crimes against Barbara S., Petitioner had used a deadly weapon in violation of Cal. Penal Code §§ 12022(b) and 12022.3(d).

Petitioner was also found guilty of four special circumstances within the meaning of Cal. Penal Code § 190.2: (1) murder committed while lying in wait, (2) murder committed in the course of a robbery, (3) murder committed in the course of a burglary, and (4) Petitioner had previously been convicted of the murders of Susan Knoll, Jillette Mills, and Bonnie Guthrie in Los Angeles County Superior Court.*fn2

On June 18, 1991, the jury returned a sentence of death for the murder of Janette Cullins. On September 9, 1991, the trial court sentenced Petitioner to death, with an additional consecutive sentence of 21 years and 8 months for the crimes committed against Barbara S.

On automatic appeal of this conviction and judgment to the California Supreme Court, Petitioner filed an opening brief on July 2, 1999, raising over twenty-three (23) issues, including numerous claims of trial court errors, voir dire errors, prosecutorial misconduct, jury instruction errors, insufficient evidence, infirmities in the death penalty statute, and cumulative error. Petitioner also filed a reply brief on January 3, 2001, and oral argument was held on May 24, 2005. The California Supreme Court affirmed the conviction and sentence on August 15, 2005. People v. Carter, 36 Cal.4th 1215 (2005). On October 26, 2005, the California Supreme Court denied Petitioner's request for a rehearing, and on April 24, 2006, the Supreme Court of the United States denied his petition for a writ of certiorari.

On April 16, 2001, Petitioner filed a habeas petition with the California Supreme Court, raising over twelve (12) grounds for relief, including claims of the use of improper evidence in aggravation, a denial of his right to competent psychiatric assistance, prosecutorial misconduct, a warrantless search of his person and property, trial court errors, state failures to disclose exculpatory evidence, and ineffective assistance of counsel during the guilt and penalty phases. Petitioner also filed a reply on August 9, 2002. Petitioner was not granted an evidentiary hearing on these claims and his petition was denied on June 28, 2006, and an amended order of denial was issued on September 13, 2006. ///

On June 29, 2006, Petitioner filed a request with this Court for appointment of counsel and to stay the execution of his death sentence. On December 6, 2006, Petitioner filed a Protective Petition, and on June 20, 2007, Petitioner filed a mixed Petition for Writ of Habeas Corpus with this Court, asserting 17 claims for relief, with eight claims comprised of numerous sub-claims. On July 6, 2007, Petitioner and Respondent filed a Joint Stipulation and Motion to Stay Federal Proceedings pending the resolution of the state petition, and on July 13, 2007, the Court granted the Motion.

On June 22, 2007, Petitioner filed a second state habeas petition, containing the unexhausted claims, and filed a Reply on April 23, 2009. Petitioner also filed a third state habeas petition on February 16, 2010, based on newly discovered evidence, and filed a Reply on May 14, 2010. The second and third state habeas petitions were both denied by the California Supreme Court without an evidentiary hearing on June 17, 2010.

On July 12, 2010, Petitioner filed a Second Amended Petition ["SAP"] in this Court, the operative pleading in this action.*fn3 On October 18, 2010, Respondent filed an Answer, and on December 8, 2010, Petitioner filed a Traverse. On December 22, 2010, Petitioner filed a Motion for Evidentiary Hearing ["Mot."] on Claims 1-5, 7, 13, and parts of Claim 16 of the Second Amended Petition. On January 11, 2011, Respondent filed an Opposition to Petitioner's Motion ["Opp."], and on January 27, Petitioner filed a Reply. On August 12, 2011, the Court denied Petitioner's Motion for an Evidentiary Hearing without prejudice, holding that "pursuant to [the Supreme Court's decision in Cullen v.] Pinholster, [563 U.S. ___,131 S.Ct. 1388 (2011)], it does not serve the interests of judicial economy to hold an evidentiary hearing, or decide whether an evidentiary hearing is warranted, prior to conducting a review under section 2254(d)." (Doc. No. 150 at 3.)

On November 10, 2011, Petitioner filed a Supplemental Brief addressing Pinholster. On November 30, 2011, Respondent filed an Opposition, and on December 14, 2011, Petitioner filed a Reply. On January 3, 2012, Petitioner filed a Supplemental Brief addressing the merits of his federal claims under section 2254 ["Pet. Merits Brief"]. On February 23, 2012, Respondent filed a Response ["Merits Resp."], and on March 9, 2012, Petitioner filed a Reply ["Merits Reply"].

II. TRIAL PROCEEDINGS

The Court refers the parties to the lengthy statement of evidence issued by the California Supreme Court in Carter, 36 Cal. 4th at 1221-37 (San Diego convictions and death sentence) and People v. Carter, 36 Cal. 4th 1114, 1128-37 (2005) (Los Angeles convictions and death sentences). The California Supreme Court's factual findings are presumptively reasonable and entitled to deference in these proceedings. See Sumner v. Mata, 449 U.S. 539, 545-47 (1981).

In order to provide a context for the Court's discussion of Petitioner's habeas claims, set forth below is a summary of evidence presented during the guilt and penalty phases.

A. Guilt Phase

While Petitioner was charged with the robbery and murder of Janette Cullins, burglary of Cullins' apartment and the sexual assault and robbery of Barbara S., both acquainted with Petitioner, the prosecution also introduced evidence relating to a prior Ventura County sexual assault and the deaths of four women in Los Angeles and Alameda Counties previously acquainted with Petitioner. Property belonging to each of these women was found in a vehicle Petitioner was driving when arrested and the car in question belonged to one of the Los Angeles County victims. Petitioner was also in possession of a bank card belonging to Ms. Cullins, Cullins' bank passcode was found on a slip of paper in the car, and a man resembling Petitioner appeared on an ATM video recording withdrawing funds from Cullins' bank account. Barbara S. identified Petitioner, who had been dating her roommate Susan Loyland, as her assailant, and a neighbor identified Petitioner as being in the neighborhood the evening of the attack. Ms. Loyland noted that money in a hidden location, which Petitioner was aware of, went missing from the apartment after the attack.

The defense introduced evidence pointing to an alternate suspect in the murders of Susan Knoll and Jillette Mills: an ex-boyfriend of Knoll named Ronald Tulio. The defense also introduced the fact that latent prints recovered from the Cullins' apartment did not match Petitioner's fingerprints, nor did fibers or hairs recovered from her apartment. The defense also introduced evidence pertaining to Barbara S.'s failure to identify Petitioner as her assailant in the days following the crime.

1. Prosecution's Case-In-Chief

In addition to evidence presented with respect to the charged crimes against Janette Cullins and Barbara S., the prosecution introduced evidence of other crimes under California Evidence Code section 1101(b), including evidence relating to the sexual assault of Jennifer S. in Ventura County, the murders of Jillette Mills, Susan Knoll, and Bonnie Guthrie in Los Angeles County, and the death of Tok Kim in Alameda County.

a. Sexual Assault of Jennifer S.

Jennifer (also known as "Rose") S., who lived in Ventura County in March 1984, testified that she met Petitioner through her neighbor Vince Stapleton, when Petitioner was a guest at Stapleton's home. (RT 3356-77.) Jennifer and Petitioner socialized on a few occasions over the course of several weeks in March, along with Stapleton and Stapleton's girlfriend Leanne. (RT 3377-93.) Jennifer stated that over the period of their acquaintance, Petitioner made advances on her, including kissing her, hugging her, and inviting her to Alaska, which she gently rebuffed each time. (RT 3393-3414.) After one such incident, she asked Stapleton to intervene, and Petitioner was asked to leave. (RT 3422-24.) Approximately a week later, in the early hours of March 29, Petitioner entered her apartment without permission, wearing a bandana and carrying a knife, and proceeded to repeatedly sexually assault Jennifer over a period of several hours, nearly strangling her at one point during the assaults. (RT 3440-55.) She and Petitioner spoke at various times during interim periods between assaults, and after assuring Petitioner that she would not call the police, Petitioner left. (RT 3456-3500.) Jennifer then ran to Stapleton's apartment to inform him what had happened; she later noticed a bracelet was missing from her home. (RT 3501-09.)

Leanne Thompson-Simandle, who was Vince Stapleton's girlfriend in March 1984 and knew Jennifer by the name of Rose, testified that while Petitioner was only supposed to stay with Stapleton for a few days, he instead stayed several weeks. (RT 3543-49.) Stapleton, who intended to go out of town after March 28, asked Petitioner to leave at that time; the next morning, Rose was hysterical, and said she had been raped and almost killed by Petitioner. (RT 3553-64.) Vince Stapleton, who met Petitioner at his brother's wedding in Alaska in the early 1980's, stated that when Petitioner came to visit him, Petitioner's only concern was making advances on the women in the complex, including Rose and Rose's prior roommate Debbie. (RT 3581-86.) After asking Petitioner to leave on March 21, Petitioner said he would be returning to Alaska. (RT 3619-25.) On March, 29, Rose woke Stapleton by pounding on the door, and informed him that Petitioner had returned the prior night and attempted to kill her. (RT 3625-29.)

Deborah Lee Johnson, Rose's roommate, testified that she also met Petitioner through Stapleton in March 1984. (RT 3684-93.) Johnson stated that, one day after their first meeting, she and Petitioner had a consensual sexual encounter on the floor of Stapleton's home, during which Petitioner was rough and quick, scaring her. (RT 3693-3700.) After the encounter, Johnson declined to socialize with Petitioner again, which caused him to storm out and slam a door. (Id.) Johnson did not inform Rose of the encounter, and moved out of their shared apartment shortly thereafter. (RT 3700-01, 3705-08.) Johnson recalled previously testifying that she had sex with Petitioner twice and later left to reconcile with a prior boyfriend, but did not recall testifying that she wanted to continue a relationship with Petitioner until she saw him leaving another girl's apartment. (RT 3708-14.)

David Finestone testified that he lived in Ventura County in 1984, and after working a late evening shift on March 28, he heard noises that caused concern, including a scream and the words "no please don't. I promise I'll be quiet" in a female voice. (RT 3752-57.) Finestone stated that he got his shotgun and went to his balcony in an attempt to locate the noise, but did not hear anything else when he got outside. (Id.) Finestone acknowledged that he did not report this information until a detective came by in July 1984 asking if he had heard anything. (RT 3759-61.)

Nancy Hughes Sharp testified that she met Petitioner when living in Ventura County in March 1984, and that she gave him a haircut in exchange for him doing some yard work for her. (RT 3784-95.) Sharp stated she gave him her key for this purpose, and arrived home to find him using her telephone without her permission, although he told her the calls had been made collect. (Id.) On one occasion, a woman called him from Alaska, and she retrieved Petitioner to take the call. (Id.) Sharp stated that a number of calls to Hawaii and Alaska were made from her phone, but Petitioner failed to reimburse her for the calls. (Id.) On the morning of March 29, Sharp was asked by police if she heard anything the prior evening, to which she stated that her dogs had barked and she heard someone walking from her apartment; she later found a slit had been made in her screen door. (RT 3801-04.) Sharp stated that after Petitioner used her phone, she became curious if he had taken anything of hers, and found one diamond earring was missing from a jewelry box. (RT 3842-45.) Sharp told police about the missing earring the morning after Jennifer's assault, after the police asked her if anything of hers was missing, and stated that a Los Angeles detective later located her earring. (Id.)

b. Sexual Assault of Barbara S.

Janelle Starr Barksdale, who was a neighbor of Barbara S. in March 1984, testified that she recalled a stranger in the neighborhood one evening, walking in the direction of Barbara's home. (RT 3721-26.) Barksdale stated that the police later informed her that there was a rape, to which she mentioned the stranger she saw in the area. (RT 3726-32.) Years later, Barksdale again contacted police when she saw a photo of that same man in the newspaper. (RT 3730-33.) Barksdale recalls telling police the man was under six feet tall, when Petitioner was over six feet tall, but stated that her identification was about his face, not his height. (RT 3742-50.)

Susan Loyland, who lived with Barbara S. in early 1984, stated that she met Petitioner when working at a San Diego cocktail lounge in February 1984. (RT 3815-27.) She and Petitioner dated, which included visits to Hollywood, the boat where he was living, and her home. (Id.) Loyland stated that her relationship with Petitioner was sexual and that Petitioner had met Barbara on more than one occasion. (RT 3827-29.) Loyland stated that she and Petitioner planned to go to Rosarita Beach in Mexico, but that Petitioner missed the bus and she went without him. (RT 3829-35.) Loyland was in Mexico the day Barbara was assaulted. (Id.)

After the assault on Barbara, Loyland noticed that her tip money, which she kept in a jar in her room, was missing, noting that whoever took it would know that she kept it there. (RT 3897-3903.) Loyland spoke to Petitioner several times when he was in the Los Angeles area during the week before the assault, but because Petitioner's arrival was delayed multiple times she finally went to Mexico without him. (RT 3903-13.) Petitioner also once left an eight inch knife in Loyland's car which she later found in her home, but did not know how it got in her home. (Id.) Loyland also noted that she and Petitioner had previously remained in contact when he went out of town, but that after Barbara's assault, she did not hear from Petitioner again. (RT 3913-16.) Loyland stated that she went to see Barbara that evening in the hospital, acknowledged that Barbara stated her inability to identify the assailant, and noted that she was the one who suggested the possibility that it was Petitioner, asking Barbara, "It couldn't be Dean, could it?" (RT 3916-19.)

Prior to her testimony, the trial court instructed the jury that Barbara S. would be typing her responses to the posed questions, and the responses would be read aloud by a court intern, stating that "I want to remind you that [Barbara S.'s] physical condition is not related to the events of March 25." (RT 3851.) Barbara S. testified that in early 1984, she rented a room at her home in San Diego to Susan Loyland. (Id.) Barbara stated that she first met Petitioner when she woke him from where he was sleeping in Loyland's room early one morning, in order to prevent him being assaulted by Loyland's boyfriend Duane. (RT 3854-58.) Barbara stated that she only spoke with Petitioner on a few occasions when he was in the company of Loyland at her home. (Id.) On the day of the assault, Barbara stated that she did yard work, that Loyland was in Mexico, and that she did not notice anything wrong with the bedroom window to Loyland's room. (RT 3858-68.) Barbara stated that after consuming a few drinks, eating, and going to bed, she was awoken by a man dragging her out of bed by her arm. (RT 3868-71.) The man put a six inch fishing-type knife to her throat, asked about money, to which she pointed to her purse, and then sexually assaulted her. (RT 3871-74.) During the assault, the assailant asked about Barbara's roommate, and tied Barbara's hands and feet with pantyhose. (RT 3874-87.) After the assailant left, Barbara cut her hands and feet free with a knife from her dishwasher. (Id.) Barbara stated that she heard her car starting from the driveway, and noted that the assailant had her keys. (RT 3887-88.) Barbara stated that she had two suspicions as to who committed the assault, one individual was with his girlfriend and her parents at the time of the assault and the other individual was Petitioner, and that she therefore believed it was Petitioner who had broken in and raped her. (Id.)

Barbara stated that after the assailant left, she opened the front door, still bound and without clothes, and screamed for assistance, to which her neighbor Helen responded and cut free her hands and feet. (RT 3996-4001.) Barbara stated that she heard her car start, and had earlier heard her keys rattle at one point when the assailant had gone into her purse for money. (Id.) Barbara stated that her car was never returned and she was later informed what happened to it. (RT 4001-07.) Barbara said that after the assault, Susan Loyland's tip money was also missing, as was Barbara's address book and keys from her purse. (Id.) Barbara conceded that she initially told police she could not identify the assailant, and stated that she placed the assailant's voice when she saw Petitioner in the news, and at that point she was "certain" and it "scared [the] hell out of me." (RT 4010-13.) After further questions pertaining to Barbara's initial inability to describe or identify the assailant, Barbara clarified that she told the police that he was part Eskimo, and in doing so, the police erroneously assumed the assailant was short and fat when she actually meant he was slim and tall. (RT 4040-44.)

On the night of Barbara S.'s assault, neighbor Helen McGirr noted a car starting at approximately 8:20 p.m., after which she heard a loud cry and responded, seeing Barbara bound, naked, and calling for help. (RT 4116-23.) McGirr stated that she asked her husband to call the police and went to help cut the ties, which had rendered Barbara's hands dark blue and almost black from the bindings. (RT 4123-27.) McGirr stated that she retrieved a robe for Barbara, who was crying, and the police took Barbara to a rape center for an exam. (Id.) McGirr stated that she went to the hospital in a police car, stayed in the hall when they took Barbara's history, but came in for the exam upon Barbara's request. (Id.) McGirr recalls the doctor asking Barbara if the suspect was black, to which Barbara replied "I don't know." (Id.) McGirr added that Susan Loyland arrived at the hospital to speak with Barbara that evening and they spoke outside her presence and that she, a retired registered nurse, was sure Barbara was not under the influence of alcohol. (RT 4127-29; 4131-32.)

San Diego Police Department Detective Ken Creese interviewed Barbara S. the day after the assault at her home, at which time she was still upset and only provided a limited description of the assailant, of a male in his twenties. (RT 4132-39.) Barbara stated that she was unable to identify her assailant, as she never saw his face. (RT 4139-41.)

Barbara S. was again called to the stand, conceded that she told Detective Creese that she was unable to identify the assailant, but explained that "I had an idea, at that time." (RT 4154-57.) Barbara acknowledged being shown photos which included Petitioner's photo in April 1984 by a Detective Fragoso, and stated that she identified Petitioner as her assailant at that time. (Id.) Barbara also recalled speaking to a Ventura County detective in June 1984 but denied that she was unable to identify Petitioner prior to that interview. (RT 4157-59.)

Detective Creese elaborated that it was routine to re-interview victims of crimes such as assault, as once the trauma settles, additional information often surfaces. (RT 4185-86.) Creese stated that the day after the assault based on information provided by Susan Loyland, he was looking for a suspect named Dean, described as an Eskimo, but appearing Caucasian, mid twenties, 6'2", 190 lbs, possibly working or staying on a boat called Sea Quest. (RT 4186-87.)

San Diego police officer Leonard Lefler responded to the call regarding a suspected rape on March 25, and stated that while the victim had already left in an ambulance, he remained at the home and conducted an interview of Susan Loyland when she returned to the residence. (RT 4209-13.) Lefler wrote a report that same night, which included information and a description Loyland provided regarding a potential suspect named Dean. (Id.)

Allen Fragoso, a member of the San Diego Police Department's sex crimes unit, showed Barbara S. a photo lineup on April 25, 1984. (RT 5487-92.) Fragoso stated that Barbara S. identified Petitioner's photo as the man she met with her roommate, but could not say he was the man who raped her. (Id.) However, Barbara stated that Petitioner and the man who raped her had similar voices. (Id.)

c. Death of Tok Kim

Kim's ex-husband Alfred Lopez identified her car, which they purchased together and she kept after their divorce. (RT 4213-28.) Lopez also identified Kim's gold necklace, suitcase, knives, gloves and other items found in Petitioner's possession or in the car he was driving at the time of his Arizona arrest. (Id.)

Raymond Conner, a homicide detective with the Oakland Police Department in 1984, explained that he was called to the scene of the unexplained death of Tok Kim, and stated that authorities were unable to determine whether she died from natural causes or homicide. (RT 4230-41.) Conner explained that Kim's body was in advanced stages of decomposition, was identified through fingerprints, and the open window and location of the body near a floor heater contributed to rate of decomposition. (Id.) Conner stated that there was a length of fabric beneath the victim's neck area, like a drape. (Id.) Conner acknowledged that the police did not find signs of forced entry, nor did they find blood splatters, bullets, blunt instruments or knives. (RT 4241-47.) Conner stated that he located several receipts, one from a Lafayette restaurant and another from a service station. (Id.) After follow up investigation and obtaining information and a photo of Petitioner from the Culver City Police Department, Conner conducted photo lineups with several witnesses, all of whom identified Petitioner as having been in Kim's company in early April 1984. (RT 4245-54.) Conner stated that when he took Kim's ex-husband Alfred Lopez to her home, he identified several missing items, including gloves, jewelry, coins, and other personal items. (Id.) Conner conceded that Petitioner's fingerprints were not matched to latents found in the victim's home. (RT 4257-61.)

The trial court then explained that they would be reading a transcript of the earlier testimony of Ray Blevins, an ex-boyfriend of Kim's who died of natural causes prior to trial. (RT 4269-71.) Blevins lived in same apartment building, paid her rent and had a relationship with Kim prior to April 1984, when he discovered in early April that Kim also had a relationship with Petitioner. (RT 4271-76.) Blevins stated that Kim was the only one to drive her car, and identified a suitcase, rubber gloves, and other items belonging to her. (Id.) Blevins stated that he saw Petitioner leaving Kim's apartment on April 1 around noon, and saw him once more at the apartment building's market. (RT 4276-81.)

Connie Santos, Kim's next door neighbor, stated that while she did not become aware of Kim's death until April 13, she noted an odor earlier, and heard a fight between a young man and a woman at 11 p.m. one evening earlier that week which included yelling and swearing. (RT 4348-55.) However, as it was late at night and Santos was tired, she went to bed. (Id.) Santos stated that she knew Blevins, that the voice she heard yelling did not belong to him, and that she did not see Kim after hearing that argument. (RT 4355-57.) Santos stated that Blevins appeared to be in his 50's, and the argument she heard was between Kim and a younger man and sounded "real serious." (RT4361-67.)

David James Hogan, who worked at a Shell station in Lafayette, California in April 1984, stated that he came into contact with Petitioner and Kim after they coasted their car to the station for repairs. (RT 4373- 79.) Hogan stated that they picked up and paid for the repairs on April 2, at which time Hogan noticed a hickey on Petitioner's neck, and after stating that Petitioner must have had a good evening, Petitioner giggled and said he did not know why he had done that, as he did not even know the lady. (RT 4379.)

In-grid Maleska-King, a co-worker of Kim's at Macy's in Concord, California, stated that Ms. Kim sometimes drove her home from work. (RT 4386-93.) Maleska-King stated that Kim had Wednesdays off, and would call the store or Maleska-King if she was unable to come to work. (Id.) Maleska-King stated that they worked for salary, commission, as well as cash tips, and that she last worked with Kim on Saturday, April 7, after which time she didn't see Kim again. (Id.) Maleska-King stated that when Kim did not show up to work or call by Thursday, April 12, she reported Kim missing. (RT 4393-96.)

Margo Fulton, a waitress at the Rocking Horse bar and restaurant in Lafayette, California in April 1984, stated that Petitioner entered the establishment on April 1 at 8 or 9 p.m., and made small talk with her and the bartender. (RT 4498-4502.) That same evening Tok Kim also came in, sat and drank a glass of wine, made small talk with Petitioner, then left alone. (Id.) Kim then returned to the bar, stated she had car trouble, and Petitioner left with Kim. (Id.) Fulton noted that it was difficult to communicate with Kim due to Kim's broken English, and noted that Petitioner later returned to the bar for a brief time to retrieve a bag he had left there. (RT 4502-06.)

William Elson, the apartment manager at Ms. Kim's complex, stated that her employer called in April 1984 in an attempt to locate Ms. Kim. (RT 4747-52.) On Thursday, April 12, Elson stated that nothing in the apartment was in disarray and he was unable to locate her, but admitted that he did not look under the bed at that time. (Id.) On Friday, Elson checked again, and located Kim's body between the heater and the end of the bed. (Id.) Elson also made an unsuccessful attempt to locate Kim's car. (RT 4752-57.) Elson stated that, on Monday of that week, he noticed an individual he identified as Petitioner attempting to gain entry into the complex, and when Elson spoke to him, Petitioner asked if Kim lived there, pointed to a mailbox, asked to be let in, and pressed the buzzer. (Id.) Elson stated that Kim was not there, and did not allow Petitioner to enter, stating that Petitioner appeared disheveled, as if he had been sleeping on the streets, and was carrying a backpack. (Id.) Elson acknowledged that Mr. Blevins also lived in the complex, previously paid Ms. Kim's rent, but had notified management that he was angry with her and would cease paying her rent. (RT 4758-68.) Elson dropped off an application that Monday to allow Kim to apply to get the apartment on her own, but the application was never returned and he did not see Kim alive after that date. (Id.)

Nicole Didion Forth, a bartender and waitress, stated that an Asian woman entered the Rocking Horse restaurant at 7:30 Sunday evening, ordered a drink, and sat at the bar. (RT 4984-89.) Forth stated that while they conversed, it was difficult to understand the woman's broken English, and that the woman left after 15-20 minutes. (Id.) The woman returned five minutes later, stating she had car trouble, and Forth, Fulton, and Petitioner, who was also at the bar, attempted to understand her; Petitioner offered assistance and left with the woman. (Id.) Petitioner returned, stating that it was a dead battery and asked for jumper cables, then returned once again to retrieve his possessions, before leaving the bar. (Id.)

Dr. Thomas Rogers, an Oakland pathologist who performed the Kim autopsy on April 14, 1984, stated that the body was in the moderate, not early, stages of decomposition when brought to his office, and that there was no way to visually determine how long the victim had been deceased at that point, as it depended on a combination of the body and the environment. (RT 5365-69.) Dr. Rogers stated that he could not conclusively determine her cause of death, but could exclude causes of which there was no evidence, finding no gunshot wound, no stab wounds, no evidence of beating, nor of heart disease or stroke, and no evidence of drug overdose. (RT 5369-75.) Dr. Rogers stated that while the cause of death remained undetermined, strangulation remained a possibility. (Id.) Rogers conceded that death could have occurred 2-3 days or 2-3 weeks prior to the examination and that he could not eliminate natural or unnatural causes as cause of death in this case. (RT 5375-78.)

Dr. Byron Blackbourne, the San Diego County medical examiner, stated that he reviewed the autopsy and coroner's report regarding Ms. Kim, as well as the crime scene photos and police reports. (RT 5502-12; 5541-48.) He stated that an undetermined cause of death was not inconsistent with asphyxia, that he was able to eliminate some potential causes of death, as there were no perforating wounds, no obvious fractures, no obvious injury to organs, no indication of natural diseases, and while alcohol was present, there were no other drugs in her body. (Id.) Soft ligature strangulation was a possible cause of death as he felt decomposition would mask any bruising or bleeding. (Id.) He stated that her death was suspicious and asphyxia was a good possibility, especially considering the fact that her car and money were stolen. (RT 5548-51.) Dr. Blackbourne conceded that while he could not definitively conclude it was a strangulation homicide, there was no evidence of suicide. (Id.)

Eddis Jeffery, who worked in apartment maintenance in Oakland in 1984, stated that he knew both Kim and Ray Blevins, and that he last saw Kim on April 9 at about 2 or 3 p.m. with someone other than Blevins. (RT 5554-63.) Jeffery stated that Kim and the man, an approximately 6 foot 3 inch Caucasian who he identified in 1984 as Petitioner, arrived in her car, went towards the apartment, then came out again at about 5 p.m., went to her car and left. (Id.) Jeffery stated that he never saw Kim alive after that, nor did he see her car again. (Id.)

Detective McEwen stated that a Honda was located outside the Knoll/Mills apartment with parking tickets on it, and was later identified as Tok Kim's car. (RT 5824-28.) McEwen stated that police removed items from the car, including a red dress, school books, bag, and sunglasses, and removed the rearview mirror. (Id.)

Cynthia Cowart, who lived down the hall from Tok Kim in 1984, stated that she last saw Kim on a Monday, and heard about the murder on a Wednesday or Thursday. (RT 5828-32.) Cowart stated that she saw Kim that Monday at 9:30 or 10 p.m., when Kim, carrying a laundry basket, asked to talk to Cowart and her boyfriend about papers she had received from the apartment manager, as she feared she was being evicted. (Id.) Cowart looked at the papers, which were simply requesting application and rental information, yet found it hard to communicate to Kim that they were not eviction papers. (RT 5832-37.) Kim explained that she had an argument with her boyfriend Ray Blevins and that he would no longer be paying her rent. (Id.) Cowart assisted Kim in setting up a meeting with the apartment management for Wednesday, and Kim left her apartment at 11:30 p.m. (Id.)

d. Murders of Jillette Mills, Susan Knoll, and Bonnie Guthrie

Sandra Pender, Susan Knoll's sister, stated that Knoll, who lived with Jillette Mills in Culver City in 1984, was best friends with Bonnie Guthrie, who Knoll grew up with in Wisconsin, and that Guthrie lived in West Hollywood in 1984. (RT 4328-35.) Pender stated that Knoll's car was a 1980 Toyota Celica, and Guthrie made sweaters for a living. (Id.) Pender owned three of Guthrie's sweaters, each with a similar label in the same area, which was the same area where the sweater in evidence contained a hole. (RT 4336-42.) Pender noted that the address book in evidence contained the name of Knoll's bank and her place of employment, each in Knoll's handwriting, and stated that the sweaters in evidence appeared to be the work of victim Bonnie Guthrie. (Id.)

Jennifer Bollman, Jillette Mills' sister, stated that Mills moved to Culver City in March 1984 with the assistance of several friends. (RT 4409-17.) Bollman stated that Knoll's room contained a photo of a person with sleeveless shirt, dark sunglasses, and cigarette in his mouth, which Bollman ridiculed. (RT 4409-20.) After Mills' death, Bollman cleaned out the apartment and noted that the photo was no longer present. (RT 4417-25.) Bollman stated that Mills' car was a one of a kind 280 white Z with a license plate reading PHANTMZ, and identified a key chain, jogging suit, sun visor, racquetball equipment, towels, tennis racket, camera, and binoculars found in the car as belonging to Mills. (Id.) Bollman added that she saw a sweatshirt belonging to Mills on the news when Petitioner exited an airplane, and that when cleaning the Knoll/Mills apartment, she found the womens' purses cleaned out and located in a kitchen cabinet. (RT 4438-41.)

Christopher Thurman, a friend of the Mills family, stated that he helped Ms. Mills move from Pasadena to Culver City, had met Susan Knoll, and based on a worried phone call from Mills' brother Jeff on April 10, 1984, Thurman left work and accompanied Jeff Mills to her apartment. (RT 4582-89.) Upon arrival, they found the gates locked and Mills' car absent, after which they went to Mills' place of employment and California State University -Los Angeles in unsuccessful attempts to locate either Mills or her car. (RT 4589-98.) Thurman and Mr. Mills returned to the apartment and gained entry by climbing over the security gate and entering the unlocked apartment door to a ringing phone, which Mr. Mills answered. (Id.) Thurman stated that the lights were out, the phone kept ringing and occupied Mr. Mills' attention, and that he inspected the apartment. (Id.) When Thurman looked in a closet with a flashlight, he saw four feet, called for Mr. Mills, and they found the bodies of Knoll and Ms. Mills. (Id.) Prior to opening the closet, Thurman stated that it had been closed with a box and painting in front of it. (Id.) Thurman stated that Mr. Mills moved a lamp nearer to the closet to see better, they contacted the police, and Thurman went outside to direct the police. (RT 4598-4604.) Thurman went into the street and leaned on a car, and later saw that same car when he went to help clean out the apartment later, now with several parking tickets on it and he then informed the Los Angeles prosecutor about it. (Id.) Thurman acknowledged that he did not note anything wrong with Ms. Mills' apartment door aside from the fact that it was unlocked. (RT 4605-06.)

Gary McEwen, one of the investigating officers in the Knoll/Mills homicides, introduced several items including a shirt, hammer, and Swiss army knife, identified crime scene photos relating to the Mills/Knoll case, and stated that Knoll's car was later located down the block from the Culver City apartment. (RT 4608-16.) McEwen stated that on April 24, a parking enforcement officer did a license check on a blue Honda with several tickets on it, and discovered that the car had a law enforcement stop on it due to an Oakland homicide. (RT 4616-24.) McEwen stated that photos of Petitioner's hand taken at the time of his arrest showed injuries to the fingers. (RT 4621.) McEwen acknowledged that there were not signs of forced entry into the Knoll/Mills apartment, that wine glasses appeared to have been wiped clear of prints, and that they compared prints found on a bathroom sink to those of Petitioner. (RT 4623-42.)

McEwen stated that he flew to Arizona on April 18 after hearing of Petitioner's arrest in order to visually inventory, search, and process the vehicle Petitioner was driving at the time of his arrest. (RT 4643-58.) McEwen conceded that while he brushed for prints, he did not perform anhydride spraying, that he did not give Arizona authorities a list of items removed from the vehicle, and did not list the items left in the vehicle. (Id.) McEwen also acknowledged that he received a box of items from the car from law enforcement in Ventura County. (Id.)

Lynne Herold, a criminalist with Los Angeles County who worked on the Mills, Knoll and Guthrie cases, collected samples from each victim's body, including hair, fluids, fibers and fingernail clippings as well as known samples from each person. (RT 4694-4705.) Sam Le, a Los Angeles County supervising criminalist who worked in serology in 1984, collected evidence at the Knoll/Mills crime scene including two nightgowns, received the rape kits from other evidence collectors, and obtained samples from Petitioner for comparison. (RT 4708-16.) Le stated that Petitioner could not be excluded as the donor of a seminal stain found on a nightgown, but conceded that 16 percent of the population had the same type and status as Petitioner. (RT 4716-28.) Le stated that the rape kits from Mills and Knoll were insufficient for typing, but semen was present in the Mills kit. (RT 4728-30.)

Robin Snyder, an employee at check center Cashex West, identified a card belonging to Susan Knoll and confirmed the address in Culver City. (RT 4743-47.)

Jeff Mills, Jillette Mills' brother, stated that he helped her move to Culver City in April 1984, and became concerned about her on April 11, after a call from their mother the previous day. (RT 4770-80.) He and Thurman attempted to locate her by going to places she frequented without success, then went to her apartment, unable to locate either her car or that of her roommate Susan. (Id.) After checking several locations, they gained access to her apartment complex at about 10 p.m., entered her unlocked and dark apartment, and Thurman explored the unit while Mills answered a ringing phone. (Id.) Thurman notified him of a problem upon opening a closet door. (Id.) Mills found it odd that a picture was leaning on the closet door, saw the bodies, moved a lamp to see better, and touched one body, finding it cold. (RT 4780-89.) Mills stayed in the apartment to call his mother and the police while Thurman went outside to direct the police. (Id.) Mills identified several items belonging to his sister that were found in her vehicle upon Petitioner's arrest, including clothing, an embroidered towel and camera equipment. (Id.)

Martin Collins, a latent print examiner with the California Department of Justice, compared latent prints from the Knoll/Mills scene with those of Ron Tulio, Petitioner, and the victims. (RT 4861-80.) Collins stated that while Tulio's prints were not found at the scene, nine latent prints were matched to Mills, seventeen to Knoll, and one palm print was matched to Petitioner. (RT 4880-85.)

Hardy Buchanan, a Culver City police evidence technician, stated that while he attempted to collect latents from wine glasses, it appeared as though they had been wiped clean, as did a tan Toyota he also processed for prints. (RT 4971-77.) Buchanan acknowledged that he also took all of the photos at the scene, which included photos of two cocaine paraphernalia kits, and collected hairs and fibers. (RT 4977; 4982-84.)

Detective Richard Zolkowsky responded to the Guthrie crime scene on April 12, noting that Guthrie's body was on the floor of the apartment, there was yarn and thread on a table, a knitting machine, and a box of sweaters labeled with the name Bonnie Guthrie. (RT 5004-13.) Zolkowsky stated that bags were placed on Guthrie's hands to contain evidence, and that when the coroner's office turned over the body and blood settled, a ligature strangulation mark appeared. (RT 5013-17.) Zolkowsky added that Guthrie also had an abrasion on her nose and a blood stain in the crotch area of her pants. (Id.) Zolkowsky stated that the apartment entry did not appear to have been forced, the sliding door was unlocked but closed, that no identification or keys were found in the apartment, and no prints aside from those of the victim were found in the apartment. (RT 5017-28.) Zolkowsky later accompanied Detective McEwen to Arizona, and identified three sweaters from that car as similar to those found in the Guthrie apartment. (Id.) In examining the mail at the Guthrie apartment, Zolkowsky found a property notification card from the San Diego Police Department. (RT 5038-41.) Zolkowsky also stated that Guthrie had one earring in her ear when found, that the other was on the floor in the bedroom, and stated that the knitted scarf found on her bed could have been the ligature used in the strangulation. (Id.) Zolkowsky stated that Guthrie's car was located in her parking space in the garage. (RT 5049.)

Marcus Kellman, an LAPD criminalist, examined the rape kit evidence, pantyhose and panties in the Guthrie case for seminal stains. (RT 5062-70.) Kellman found no stains on the panties, but found a stain on the pantyhose, as well as on both the vaginal and anal rape kit slides. (Id.) Kellman stated that the presence of sperm was also found on Guthrie's external genitalia. (RT 5074-76.)

Guela Vahab, who lived in Los Angeles and knew and had worked with Bonnie Guthrie in 1984, stated that she and Guthrie shopped together on April 11 from approximately 11 a.m. to 1:30 p.m. (RT 5196-5202.) Vahab stated that Guthrie knitted sweaters for a living, identified Guthrie's knitting machine, and stated that Guthrie labeled the sweaters she made. (Id.) Vahab stated that Guthrie made one-of-a-kind sweaters, and identified a photo of one. (Id.)

Susan Anshus, who met Bonnie Guthrie in 1978 and worked with her in Milwaukee, Wisconsin, stated that they kept in touch and Anshus mailed Guthrie a letter on April 11, returning photos Guthrie had sent. (RT 5293-98.) Anshus identified the type of sweaters Guthrie made. (Id.)

Dr. Lakshanan Sathyavagiswaran, a supervisor at the Los Angeles County Coroner's office, stated that while Dr. Allen, a medical examiner in the office, had performed the Mills, Knoll and Guthrie autopsies, he had reviewed the records of all three autopsies. (RT 5298-5307.) Dr. Sathyavagiswaran testified that the cause of death in Jillette Mills' case was asphyxia due to ligature strangulation, that she had petechial hemorrhages in the eye, abrasions on the neck, and compression of the neck. (RT 5307-24.) Dr. Sathyavagiswaran stated that there was no fracture of the neck bones, which eliminated manual strangulation, and that there were also injuries to the genital area, evidence of sexual assault, and an injury to left side of her head. (Id.) Dr. Sathyavagiswaran stated that Mills was dead at least fifteen hours prior to being discovered. (Id.)

With respect to Susan Knoll, Dr. Sathyavagiswaran stated that her cause of death was asphyxia due to manual and/or ligature strangulation, as she had neck bone injuries in addition to other neck injuries and no clear cut ligature abrasion. (RT 5324-39.) Knoll also sustained injuries of mostly scrapes or bruising to her forehead, lower lip, wrist, tongue, and ankle in addition to bruising near her abdomen and to the genitalia. (Id.) Dr. Sathyavagiswaran stated there was no strong evidence of sexual assault, but intercourse had taken place, as there was evidence of seminal fluid. (Id.) Dr. Sathyavagiswaran opined that Knoll had also been dead more than twelve hours prior to the early morning of April 12, but he could not conclusively determine who died first, as the victims' liver temperatures were taken several hours apart. (Id.)

With respect to Bonnie Guthrie, Dr. Sathyavagiswaran stated that her cause of death was asphyxia due to ligature strangulation with a soft type ligature, noting that nylon could have caused the injuries. (RT 5339-50.) He noted scrapes and blows to Guthrie's nose and hip, as well as abrasions on her genital area consistent with forced sexual activity, and noted that seminal fluid had also been found. (Id.) Dr. Sathyavagiswaran concluded that Guthrie had been dead a minimum of twelve hours prior to her discovery, as rigor mortis was fully developed. (Id.) He stated that the findings were consistent with the possibility that Guthrie died between 1:30 and 3:00 p.m. on April 12. (RT 5355-57.)

Evidence technician Peter Carl Dolan with the Culver City Police Department collected the latent print matching Petitioner that had been found on the Knoll/Mills bathroom sink, and conceded that there was no way to ascertain the age of a fingerprint. (RT 5379-86.)

Manny Glieberman, a plumbing contractor, did work at the Guthrie apartment on April 11, 1984. (RT 5453-57.) After speaking with Spiro, the building manager, Glieberman knocked at Guthrie's door, opened it with the key, and carried his tools to the bathroom. (Id.) Glieberman stated that the bedroom door was closed and that Spiro knocked at that door but received no response, then opened and closed the door. (Id.)

Annette Cheng, a loan processor in Los Angeles, stated that she received a phone call about her co-worker Susan Knoll at about 10 a.m. on April 11. (RT 5492-5502.) The caller was a man with a deep voice and a mild regional, but not foreign accent, who stated that Knoll had been in a car accident and would not be in to work that day. (Id.) The caller said he was at the accident scene, that Knoll asked him to make the call, and that she was going to the hospital to get checked out. (Id.) Cheng asked for the caller's name, but he did not provide it. (Id.)

Matt Spiro, the apartment manager at Bonnie Guthrie's West Los Angeles apartment building, stated that the building had a plumbing problem in April, and he made arrangements to fix it. (RT 5837-42.) On the afternoon of April 11, he used the master key to enter the unit, and saw Guthrie lying on floor of her bedroom, upon which he told the plumber that she was sleeping on the floor, and closed the door. (Id.) Spiro stated that he knocked on the door again the next day, used the key, only to discover Ms. Guthrie still lying on the floor, which is when he realized she was dead and called the police. (RT 5842-45.)

e. Murder of Janette Cullins

Richard Thwing, a homicide detective with the San Diego Police Department in 1984 and assigned to the Cullins' homicide, stated that he, several other detectives and evidence technicians were dispatched to the Cullins apartment mid morning on April 14. (RT 4509-16.) Thwing noted a pry mark on the door, stated that it appeared someone had attempted to force entry into the apartment, and stated that Cullins' body was in the closet. (RT 4516-20.) Thwing stated that Cullins had a ligature mark on her neck and a laceration on her arm, and that her car was found parked several blocks from her apartment. (RT 4520-23.) Thwing stated that he later learned there had been activity on Cullins' ATM card, after which he spoke with someone at the bank and obtained a videotape. (RT 4523-25.) Thwing noted that while he believed some fingerprints had been recovered from the scene, had an individual wore nylons, it would obscure prints. (RT 4527-30.) On cross-examination, Thwing identified the other members of the investigation, stated that he interviewed neighbors while Detective Shively conducted the crime scene investigation, and denied trying a key in the apartment door, and denied removing wood or seeing anyone remove wood from the scene. (RT 4530-34.)

George Cullins, Janette's father, stated that at the time of her death she was between roommates, as Nancy Schick had moved out and Cheri Hofer had yet to move in. (RT 4537-40.) Mr. Cullins stated that the last time he spoke to Janette was April 4, when she informed him she would be unable to attend their weekly family dinner on April 11, and that when Nancy called on April 14 after being unable to locate Janette, Mr. Cullins became concerned and asked Nancy to look for Janette's car. (Id.) Mr. Cullins stated that Janette's car had a license plate containing the word SHYLAS, and that on April 14, leaving her apartment to be with his wife, he saw her car parked on an adjacent street, which was not where she normally parked the car. (RT 4540-49.) Mr. Cullins also stated that when he went to the bank to close her account, he was informed of unusual activity and informed the police. (Id.) Cullins stated that approximately three or four days after the police were there, he noticed loose screws on the door jamb of her apartment, which came off in his hand. (RT 4579-82.)

William Green, an investigator for the San Diego District Attorney, stated that he located the boat named Sea Quest docked within walking distance to the Lost Knight Bar, and that he served the warrant on Ms. Cullins' bank to obtain the videotape of the ATM transaction, which only left his custody when the district attorney checked it out. (RT 4549-66.)

Forensic pathologist Hormez Guard, stated that when employed at the San Diego County Coroner's office in 1984, he performed the autopsy on Janette Cullins. (RT 4658-71.) Dr. Guard stated that the cause of death was asphyxia caused by strangulation, that there were marks on her neck, linear abrasions, contusions, and that it was possible for a nylon to make the marks. (Id.) Dr. Guard noted that some loss of pattern in the wound indicated movement, that more prominent marks on front of the victim's neck indicated strangulation from behind, and that the victim would have been unconscious from the strangulation before death occurred. (Id.) Dr. Guard also noted muscle hemorrhages, bone damage to the neck, marks on the victim's larynx, small marks or bruises on her chin, and a cut on the front chest area consistent with a knife. (RT 4571-78.) Dr. Guard also examined the victim's body for signs of sexual assault, did not find semen in the genital or mouth area, or evidence of force, yet conceded that the possibility of sexual contact of some sort remained. (Id.) Dr. Guard conceded that he was unable to establish a time of death, which became more difficult to ascertain after 24 hours, but that his estimate was that the time of death occurred between 24 hours and 48 hours prior to the autopsy, which had been conducted on Sunday, April 15 at 9 a.m. (RT 4383-87.)

Detective Fred Dreis stated that in the course of his work on the Cullins' homicide, he went to the crime scene, and that his report included a mention of pry marks and wood chips scattered about by bottom of door. (RT 4796-4803.) Dreis conceded that since the report, he had not personally seen the wood chips, noting that any evidence collected would have been stored in the property room. (RT 4803-06.) Based on the observed pry marks, Dreis concluded that someone attempted to force entry into the apartment, as the marks appeared sufficient to gain entry; Dreis stated that even if the intrusion had been unsuccessful, it was evident that someone attempted to gain access to the apartment in that manner, as the wood chips appeared to be fresh. (RT 4806-07.)

Bruce Furnice, a carpet technician at Stanley Steamer, stated that he was assigned to clean a carpet at the Cullins' apartment on April 13, but the occupants were not home when he arrived at 8 a.m., so he left a card and went to another job. (RT 4808-10.)

Robert Pack, who worked as a fish buyer on North Harbor Drive, stated that in April 1984, Adolph Romero gave him a brown purse containing a wallet and identification but no money. (RT 4810-17.) Pack stated that they first attempted to call the phone number on the card, but when there was no answer, they called the police later that same day. (Id.) Pack stated that the purse also contained checks bearing the name Bonnie Guthrie and a social security card in her name, that the number they called was a San Diego number, and that Romero found the purse on a roadway leading to the pier. (Id.)

Cheri Hofer Phinney had planned to move from La Jolla to San Diego the week of April 9, 1984, in order to move in with Janette Cullins. Hofer stated that on April 12, she did not yet have a key, but was at the apartment between 10 a.m. and 7:15 p.m. with Ms. Cullins present in order to paint her bedroom and bathroom, and spoke to Ms. Cullins a bit that day, noting that Cullins vacuumed the apartment that day. (RT 4819-25.) Hofer stated that some of the conversation between her and Cullins concerned meeting people in bars, and that when Petitioner came by, Cullins asked Hofer to make her presence known, said this was "one of the other kind" of people met in bars, and introduced Hofer to Petitioner, who stayed about one hour. (RT 4828-32.) Hofer stated that Cullins remained at the apartment until approximately 6:30 p.m., then left to attend the symphony with Catherine Tiner. (Id.) Hofer finished painting, during which time she took a phone message for Cullins on a note pad that did not contain the word SHYLAS, and stated that the blinds were open and the door undamaged when she left. (RT 4832-42.) Hofer called Cullins the next morning starting at 8 a.m., and tried calling a total of four times that day without any answer. (Id.) When Hofer called again on Saturday, April 14 at 8 a.m., Nancy, the vacating roommate, answered the phone, and said Cullins was not at home; Hofer went over to move some items into the apartment. (Id.) When Hofer arrived, she noticed chips and dirt on the floor that were not previously present due to the recent cleaning Cullins had performed, and that the drapes and curtains were closed, again different from the last time she had been at the apartment. (RT 4842-46.) Nancy and her boyfriend Lee were also present, and all three tried to ascertain where Cullins was by looking around the apartment for a note or other indica of her whereabouts. (Id.) Nancy opened the closet, found Cullins' body, and went to call the police. (Id.) When painting on April 12, Hofer had a brief conversation with Petitioner in the bathroom, during which she informed him that she would attempt to complete the painting that evening. (RT 4850-52.) Later, although Hofer did not personally observe it, Cullins informed her that Petitioner had left. (RT 4852-57.)

Susan Seminoff, who worked and was friends with Janette Cullins for four years, stated that they went to open checking accounts in December 1980 at San Diego Federal. (RT 4895-4904.) In picking a code for their ATM cards, Cullins chose SHYLAS, informing bank personnel that the word was on her license plate. (Id.) Seminoff stated that Cullins was relatively secretive about the code and covered it up when she entered it at ATM machines. (Id.)

Rodney Beverly, an internal investigator with Wells Fargo, which was now associated with San Diego Federal, stated that on April 13, there were several entries on Cullins' ATM card. (RT 4904-10.) These included an inquiry without a withdrawal, as well as a second entry which withdrew $60 from the account and left a balance of $4.06; Beverly noted that money could only be withdrawn in $20 increments. (Id.) Beverly obtained a videotape of the ATM transactions, later viewed it with a police officer, and stated that the transactions began on April 13 at 6:57 p.m. (RT 4910-13.)

Nancy Schick McEachern stated that she moved out of the apartment she shared with Janette Cullins on April 6, yet kept the key and planned to have a garage sale on April 14. (RT 4913-22.) McEachern stated that the drapes in the apartment were usually closed at night, the blinds were never completely closed, and that Cullins' car was usually parked curbside. (Id.) McEachern came to clean the apartment on April 11 and Cullins was home at that time. (Id.) McEachern stated that while she had originally planned to return to the apartment on Thursday, April 12, she did not, and called to apologize on Friday morning, yet there was no answer to her 3-4 attempts at calling, nor did the answering machine turn on. (RT 4922-25.) McEachern also stopped by during her lunch hour, approximately 11:30 a.m., and another car arrived when she did and a man identifying himself as Dean and driving a white Z car asked if Cullins was home, as they had a lunch date, to which McEachern pointed out that it was only 11:30. (Id.) McEachern took several items into the apartment, wrote a note for Cullins and placed it on the dining table, and did not see Dean, who she identified as Petitioner, when she left the apartment. (RT 4925-28.) McEachern stated that blinds were closed, which was unusual, and that while she went into Cullins' room, she did not enter or look in the closet. (Id.) McEachern next went to the apartment on Saturday morning to set up for the sale, used her key to gain entry, and called Cullins' mother when she saw her note was still on the table. (RT 4928-34.) Hofer also called and came over, and McEachern also called several others, including Susan, her boyfriend Lee, and Cullins' father. (Id.) When they looked in the bedroom closet, they found Cullins and called the police. (Id.) McEachern recalled that sometimes when the phone rang, Cullins had stated, "If that's Dean, I don't want to talk to him," but McEachern stated that she never met or saw Petitioner prior to 11:30 a.m. on April 13. (RT 4934-35.) McEachern acknowledged that she did not have difficulty using her key to gain entry to the apartment on April 13 and 14 and did not notice pry marks or damage to the door. (RT 4935-38.)

Charles Byron, who lived in Poway, California in 1984, stated that Cullins contacted him about a job, that they had a tentative appointment on April 13, as well as an alternate appointment on April 17. (RT 4996-5001.) Byron called her on Friday, April 13, without receiving an answer, after Cullins had called and left a phone message for him at 10:52 a.m. on Thursday, April 12. (Id.)

Sharon (Hudson) Bergan stated that when she worked for San Diego Harbor Police in 1984, she collected a brown purse from a man named Dan on April 14 and turned it over to the San Diego Police Department. (RT 5001-04.)

Cathleen Tiner, who first met and became friends with Janette Cullins in 1983 through work, stated that she was with Cullins when they met Petitioner and his friend Antoine Masure at a nightclub and cafe the weekend of February 25-26, 1984. (RT 5093-5101.) Tiner stated that during this evening, she heard Petitioner ask Cullins for her phone number, which she eventually gave to him. (Id.) Antoine asked for Tiner's number, but after initially taking his number instead, she also gave him hers. (RT 5101-03.) Tiner recalled that Petitioner asked both Tiner and Cullins whether they had roommates or lived alone. (Id.) Cullins told Tiner in a later conversation that she wished she had not given Petitioner her phone number. (Id.)

Masure called Tiner on Tuesday, February 28 to invite her to dinner on the boat Sea Quest on Friday, March 2, and Tiner spoke to Cullins, who had received a similar invitation from Petitioner. (RT 5107-11.) Tiner stated that she and Cullins had a code word worked out in advance to end the evening, and they left after dinner, drinks and conversation. (RT 5114-19.) Tiner stated that when leaving, Cullins' car would not start, but they were able to jump start it with assistance. (Id.) Tiner stated that when Cullins started to get into her car, Petitioner grabbed and hugged her, after which they went home. (Id.) Petitioner called Tiner on Sunday, March 4, stating that he and Cullins had gone sightseeing to Cabrillo that day, that she left for a dinner date that night, and asked Tiner to dinner that evening, to which Tiner declined, stating she had a dinner date as well. (RT 5119-21.)

Petitioner again called Tiner on March 24, stated that he was in Los Angeles and was looking for Cullins, to which Tiner lied and said she did not know where Cullins was. (Id.) Petitioner stated that he was returning to San Diego and wanted to see Cullins again before he went back to Alaska, and asked Tiner to run off to Mexico with him and get married or go on a date; Tiner declined both. (RT 5128-31.) Tiner called Cullins immediately after ending the conversation with Petitioner. (Id.)

Tiner last saw Cullins on April 12 when they went to the symphony together from her apartment in Hillcrest, stating that Cullins arrived at 6:10 p.m. wearing a white and gray dress, and that they went to dinner afterwards at 8:40 p.m. (RT 5131-35.) Cullins, who was not working at the time, borrowed money for dinner, and both women went to Tiner's home at 9:40 p.m. and watched television until 11:00 p.m., at which time Cullins left. (Id.)

Tiner had plans to attend a baseball game with a friend the next evening when Petitioner came by at 6 p.m., appearing groomed, calm, and initially pleasant, wearing pants, a sweater, and a jacket. (RT 5135-39.) Tiner was surprised to see him, informed him that she had company coming over, and said he should have called first. (Id.) Petitioner asked if Cullins informed her that he was in town, to which Tiner said yes. (Id.) Petitioner said he asked Cullins not to tell her that, to which Tiner said he needed to leave, repeating that she had company coming over. (Id.) Petitioner then asked if Tiner was aware that Cullins had stood him up that day, to which Tiner replied no. (Id.) Tiner stated that Petitioner was pleasant at first, but stiffened when he found out Cullins had informed her he was in town. (RT 5139-41.) Tiner stated that she went to get ready, and twice tried to call Cullins, but received no answer. (Id.)

After the March 2 dinner with Masure and Petitioner, Tiner informed Cullins that Masure thought Cullins wanted to stay with Petitioner, which Cullins denied, stating that she had no intention of spending the night with Petitioner and would tell him that if he called her again. (RT 5202-04.) Tiner contacted Cullins, who was at Susan Semioff's, after her March 24 conversation with Petitioner, to which Cullins stated she thought she had gotten rid of Petitioner, and stated that now she could not answer the phone. (RT 5204-08.) Prior to leaving to meet Petitioner and Masure on March 2, she and Cullins left a note for Cullins' roommate Nancy because they were uncomfortable going to a secluded non-public place with people they hardly knew. (RT 5208-12.)

David Susi, who lived in Pacific Beach in 1984, saw Petitioner driving a Datsun with the license plate PHANTMZ at the intersection of Grand and Ingraham the afternoon of April 12 when Petitioner asked Susi how to get to Mission Beach. (RT 5242-50.) Seeing the newspaper later, Susi realized that the exchange might have been significant and contacted police. (Id.) On cross-examination, Susi did not recall being initially unsure whether the exchange took place on Wednesday, April 11 or Thursday, April 12, and denied being unsure of his identification of Petitioner. (RT 5250-57.)

Dannis Nuckolls, a police evidence technician, took the crime scene photos at the Cullins apartment, and noted photos reflecting the appearance of forced entry, including wood fragments and tool marks. (RT 5387-97.) Nuckolls also took photos of the victim's body, red stains on the bed sheet at the apartment, and took photos of Cullins' autopsy. (Id.) Nuckolls removed a piece of wood from the doorjamb and photographed the area, but did not personally retain the wood particles and does not know what happened to them. (RT 5400-05.) Nuckolls also did fingerprint work at the scene, while another technician did the criminalistic work, and acknowledged that part of his job was to take evidence from crime scenes and see that it is properly preserved. (Id.) Nuckolls stated that he removed a section of the apartment's doorjamb, but did not impound the wood chips; he also impounded and inventoried a brown leather wallet. (RT 5405-06.)

Adolph Romero, who worked on a fishing vessel off of North Harbor Drive in San Diego in 1984, found a wallet on April 14, opened it to look for contact information for the owner, tried calling, and pressed for time, gave the wallet to his friend Robert Pack to make further attempts at contact with the owner. (RT 5420-28.) That same day, Romero reported seeing a white Z car in the area, and acknowledged that he only located a wallet, not a purse. (Id.) Romero recalled the driver's license, credit cards, and a calling card with the Cullins' phone number on it, which he called. (RT 5433-37.) Nuckolls was recalled to the stand to testify as to the inventoried contents of the wallet, including business cards, a copy of a birth certificate, two keys, credit cards, calling card, the driver's license of Jan Cullins, in addition to the drivers license of Bonnie Guthrie, and credit and bank cards in the name of Bonnie Guthrie. (RT 5437-47.) Nuckolls also listed the inventoried purse contents, including cards, a checkbook with checks in the name of Bonnie Guthrie, business card, bank cards, and social security cards. (Id.) Nuckolls stated that police received the wallet on April 16 and the purse on April 23. (RT 5447-48.)

Dan Clark, a dockmaster in the San Diego marina in 1984, came into possession of a purse in April 1984 and called the harbor police. (RT 5470-75.) Clark did not remove anything, nor did he perform an inventory of the contents prior to turning it over. (Id.) Sharon (Hudson) Bergan received the purse on April 14, 1984 from Dan Clark and inventoried its contents, which included a wallet, checkbook, and social security cards with two last names. (RT 5476-79.)

District Attorney investigator Green drove the distance from Catherine Tiner's home to the bank, which was 4.6 miles and took slightly over ten minutes. (RT 5480-85.) Green also interviewed David Susi and showed him a photo lineup concerning the person Susi saw in the PHANTMZ car; Susi picked out Petitioner's photo. (Id.) Green conceded that Susi added a caveat to the identification of Petitioner, stating, "I think that's him, but I can't be sure." (RT 5486-87.)

Leanne Johnson, who lived across the street from Ms. Cullins and was baby-sitting her granddaughters on the evening of Thursday, April 12, 1984, stated that she heard noises outside that sounded like a party coming from across the street between 10 and 11 p.m. (RT 5816-24.) Johnson also heard and saw a white car with a black stripe running at 11:10 or 11:15 p.m., stated that it ran for 15 minutes or so and then left, and that it nearly hit a pickup doing a U-turn on its way out. (Id.) Johnson was unable to see the driver of the car, as it was too dark outside. (Id.)

f. Petitioner's Arrest in Arizona

Arizona Highway Patrol Officer Robert Dapser testified that on the evening of April 17, 1984, he made a traffic stop of Petitioner for erratic driving at 10:50 p.m. on Interstate 40. Petitioner had an expired Alaska driver's license, and was unable to produce the registration on the car he was driving, a white Datsun with the California license plate "PHANTMZ." (RT 3956-63.) Dapser stated that he saw a burnt portion of a marijuana cigarette on the center console area of the car, after which he placed Petitioner in custody on suspicion of driving under the influence of alcohol or drugs. (RT 3963-66.) Dapser handcuffed Petitioner and placed him in the patrol car and noted empty beer bottles in the car Petitioner had been driving, as well as personal items scattered about the car, including a card from the San Diego Federal Savings and Loan in the name of Janette Cullins. (Id.)

Dapser explained that he later did a visual inventory of the car's contents, and that the vehicle was impounded by the Culver City Police Department. (RT 3966-78.) Dapser stated that the car's contents included items such as a key ring containing the ignition key which had a red medallion and the word "leo" on it, clothing and personal items, a camera with accessories and case, tennis racket, suitcase, binoculars, two knit sweaters, green backpack, cassette tape, as well as the aforementioned bank card belonging to Ms. Cullins. (RT 3966-77.) Upon booking Petitioner into the Yavapai County Jail, Dapser inventoried numerous items from Petitioner's person, including a billfold, address book, business card containing the written names, numbers and addresses of Catherine Tiner and Janette Cullins, a pocket knife, a man's watch, golf glove, shaving razor, a key chain containing a chip from a casino in Las Vegas, a used book of matches, and a gold chain around his neck. (RT 3978-86.) Officer Dapser stated that officers from Culver City came to impound the vehicle and inventory and remove items. (RT 4044-55.) An officer from Ventura County came to place Petitioner in their custody and transport him to California. (Id.) Officer Dapser conceded that Petitioner was cooperative and followed instructions when first stopped, and stated that while Petitioner was unbalanced at the time of the arrest, Petitioner's blood alcohol content was .078 when tested approximately 90 minutes after arrest. (RT 4061-66.)

Culver City Detective Gary McEwen testified that after the murder of Jillette Mills and Susan Knoll, they learned two vehicles belonging to the victims were missing, including a 1980 Datsun 280Z with the California license plate PHANTMZ. (RT 4071-79.) The officers placed the vehicle information in a national system, received information on April 18, and flew to Arizona in response to this information. (Id.) McEwen stated that the owner of the tow yard let them in, they started processing the car, and that Arizona Highway Patrol personnel showed up soon after. (Id.) McEwen stated that the officers inventoried the car and contents, and the keys were released to the Mills family in order to return the car to them. (Id.) McEwen noted several additional items inventoried, including the business card with Ms. Cullins and Ms. Tiner's names on it, a phone book, a receipt from an Oakland restaurant, and a cashex card. (RT 4079-91.) McEwen also identified a Members Only jacket containing nylon stockings. (Id.) The word "Shylas" had been written on the back of a grocery receipt, and while McEwen was aware of the Cullins murder in San Diego, he did not know what "Shylas" referred to at that time. (RT 4091-4100.) The car's contents also included a spa member card belonging to Ms. Cullins, in addition to items previously mentioned by Officer Dapser. (RT 4100-07.) McEwen also added that a ladies bracelet, cigarettes, earrings, and a claw hammer were found in the car, and a knife with a 6-7 inch blade was found in the suitcase. (RT 4107-15.)

Sheriff Jerry McKeand, who worked at the Arizona jail where Petitioner was booked in 1984, stated that at the time of booking, Petitioner was wearing jeans, a gray sweatshirt, tennis shoes and green socks, and had some cash in his possession. (RT 5076-79.) McKeand stated that the clothes would have been returned to Petitioner upon his release. (Id.)

Ventura police officer William Ragsdale stated that he, along with two Ventura County Sheriffs, traveled to Arizona to pick up Petitioner, who was wearing a gray sweatshirt, long sleeved undershirt, jeans and tennis shoes. (RT 5079-85.)

g. Other Testimony

Polly Haisha met Petitioner on February 18, 1984 at a birthday party for a friend, and found him to be charming, nice, and not at all aggressive. (RT 4296-4306.) Petitioner asked Haisha if she and her friends had been sailing, as he had a boat; Haisha and her friends gave Petitioner their phone numbers, which Haisha identified in Petitioner's address book. (Id.) Petitioner called Haisha the day after the party, and as she was not home, he then called her friend's home, inviting her sailing when he was in town later in the week. (RT 4307-10.) After Haisha spoke to friends at school to secure the attendance of another person, she stated that she later felt weird about it and called him to cancel. (Id.) Haisha stated that she talked to Petitioner periodically over the next few weeks and continued to make dates which she then canceled. (Id.) At one point during a conversation, Petitioner said Haisha should quit school and sail to France with him; Haisha noted Petitioner became more aggressive and mean when she canceled dates. (RT 4310-16.) Petitioner also informed Haisha that he had been married and divorced, did not mention he had children, and alternately spoke amiably about his ex-wife or called her a bitch. (Id.) Haisha's last conversation with Petitioner was on the evening of March 24, when Petitioner stated he would be in San Diego the next day. (Id.) Haisha asked him to stop calling her, to which he sounded irritated, but she did not think he called again. (Id.) On cross-examination, Haisha acknowledged that she was currently a law student, intended to work for the San Diego district attorney's office over the summer, had interned there in the past, and also intended to work there after taking the California bar exam. (RT 4316-25.)

Sandra Homewood, a document examiner with the San Diego District Attorney's office, examined a number of writing samples from individuals involved in the case, and testified that Petitioner was the primary author of the entries in the address book found in his possession at the time of his arrest. (RT 4442-80.) Homewood opined that Petitioner made the entries in the address book corresponding to the names Catherine Tiner, Janette Cullins, and Susan Knoll, and while the sample was limited, Petitioner's handwriting was also consistent with the entry made regarding Polly Haisha. (RT 4480-85.) With respect to the business cards found in Petitioner's possession, Homewood stated that Petitioner also wrote the name Jan Cullins, the phone number, and the Tiner entry on that card. (RT 4485-98.) Homewood also compared Petitioner's writing to the Shylas note, but that document was limited for identification purposes and she was not able to identify or eliminate him as its author, noting that Janette Cullins' handwriting was more consistent with the writing. (Id.)

Andrew Holtz, who lived in Hollywood in 1984, knew Petitioner and allowed him to make phone calls from his home. (RT 5789-98.) Holtz identified a number of phone calls he did not make, including ones to the Lost Knight Bar, Philadelphia, Washington state, Alaska, Cathleen Tiner, Polly Haisha, and Janette Cullins' home. (Id.) Holtz stated that the name Susan Loyland was familiar to him, and that he recalled Petitioner bringing a woman to his home but did not recall her name. (Id.) Holtz recalled Petitioner telling him that he planned to go to San Diego and then to Mexico with some friends, and recalled Rob Stapleton telling him about a rape accusation in Ventura. (RT 5798-5806.) When Holtz asked Petitioner about the Ventura accusations, Petitioner denied them, stating that he had an argument with a woman, had been drinking heavily and did not exactly recall what happened, but planned to call Ventura and get it straightened out. (RT 5806-12.)

2. Defense Case

The defense presentation at the guilt phase introduced witness testimony regarding: (1) Susan Knoll's ex-boyfriend Ron Tulio, who one eyewitness previously identified as being in the area around the day of the Knoll/Mills murders; (2) that prints not matching Petitioner's were found at the Cullins' apartment, the hair and fibers found did not match Petitioner, and the blood type match also matched fifty percent of the general population; and (3) that Barbara S. did not immediately identify Petitioner as her attacker or offer a specific description of her assailant.

Richard Haas, a district attorney's office investigator in Ventura County who worked on the Jennifer S. case, stated that he spoke to Andrew Holtz about that witness's phone calls with Petitioner. (RT 5935-40.) Petitioner told Holtz that he was returning to Los Angeles March 22 or 23, stayed with Holtz during this time, then left on March 25, after mentioning plans to meet some friends and go to Ensenada from San Diego. (Id.) Haas also spoke to Barbara S. in order to attempt to ascertain similarities, if any, between that attack and the attack against Jennifer S. (RT 5946-51.) Barbara S. stated that at the time of the attack, she did not think of Petitioner, but when Loyland mentioned him, Barbara thought the voice she heard may have been that of Petitioner, and that the size and build of the assailant was similar to that of Petitioner. (Id.)

Culver City police officer Lee Cantrell recalled that Officer Bloor made an April 12 identification of a photo to Officer White, who was no longer with the police department. (RT 5953-91.) Bloor, who lived in that area, identified a photo of Susan Knoll's ex-boyfriend Ron Tulio as a man he saw in the vicinity a few days earlier. (Id.) Cantrell also interviewed Ron Tulio, and in the course of that interview, discussed or shared some of the details of the crime, such as mentioning that the victims were found in a closet. (Id.) Cantrell also recalled Tulio asking if the victims had been shot or stabbed, and asked about sex, to which Cantrell replied that the victims had been fully clothed. (RT 5997-6001.) Cantrell stated that Tulio was cooperative, never hesitated to answer any of the questions, and that they did not discuss the Guthrie homicide, as Cantrell was not aware of that homicide at the time of the interview. (RT 6001-07.) During the interview, Tulio also asked about fingerprints at the crime scene. (RT 6007- 18.)

Lauren Carville, who lived in the apartment below Janette Cullins in 1984, last saw Cullins on Thursday, April 12, when both women were sunbathing in the yard. (RT 6136-42.) Carville stated that a man came by to speak with Cullins that afternoon, and that Carville saw Cullins leave the residence at about 7 p.m., after which time Carville left as well, returning at about midnight. (Id.) Carville stated that the walls in the units were thin, that she did some work until 1 a.m., and that she is a light sleeper but was not awakened that night before rising at 6 a.m. to go to work. (RT 6139-47.)

Annie McFadden recalled plans she had to go to Mexico with her boyfriend Marshall, her friend Susan Loyland, and Petitioner. (RT 6047-52.) McFadden stated that these plans were the same day that Loyland's roommate was later attacked. (Id.) McFadden picked up Loyland at 11 a.m. and went to the bus station to pick up Petitioner, but after the group waited in the car and were unable to locate Petitioner for 45 minutes, they went to Mexico without him. (Id.)

Detective McEwen was recalled to discuss his recollections regarding Officer Bloor's photo identification, but was unable to locate the photo Bloor had identified. (RT 6060-67.) McEwen stated that the photo was in an album later released to the Knoll family, that he did not remove any photos from the album prior to releasing the album to the victim's family, and that he did not recall the specific photo identified by Bloor. (RT 6067-75.) Upon further questions by the prosecution, McEwen identified a Las Vegas casino fun book dated April 17, 1984, which was found in the car Petitioner was driving at the time of his arrest. (RT 6075-78.)

San Diego police officer Gene Loucks took Barbara S. to the hospital on the night of the attack, and they discussed the description of her attacker. (RT 6078-81.) Barbara stated that he was a white male in his twenties of average build and height, but was unable to provide any additional details, or any details about his speech and voice, nor did she mention or name anyone as her assailant. (Id.)

Evidence technician Michael Palermo examined the latent prints in the Cullins case and was able to match 17 latent prints to Cullins, but was unable to match 31 other latent prints. (RT 6089-96.) Palermo stated that he was only provided with prints from Cullins and Petitioner. (Id.) Palermo acknowledged that it was very possible for someone to be in the apartment and not have any latent prints show up, and conceded that someone wearing gloves would not leave prints. (RT 6096-6100.)

San Diego police criminalist William Loznycky conducted fiber and hair comparisons in the Cullins case and was unable to match either the fibers found in the victim's hand or hairs on a blanket to either Petitioner or Petitioner's clothing. (RT 6111-17.) Loznycky stated that an O type blood stain was found at the scene that did not match Cullins, but could match Petitioner, but conceded that fifty percent of the population was also type O. (RT 6117-25; 6136.)

Culver City Police officer Craig Bloor, who lived in a building in the same apartment complex as Ms. Knoll and Ms. Mills, stated that on April 10, he saw a man he did not recognize walking from the parking area to the street, and having been burglarized recently, paid attention to the individual. (RT 6137-42.) Later, after learning about the homicides, Bloor told officers about the man he saw at the complex. (Id.) Looking at a photo album, Bloor pointed to a photo of Ron Tulio, stating that he looked like the guy Bloor saw that night. (RT 6142-44.) On cross-examination, Bloor currently believed that Petitioner, not Tulio, was the man he saw that evening. (Id.) Bloor spoke to Petitioner on April 10, who stated he was looking for a friend's house, was holding a blue folder, and asked Bloor if he looked suspicious, and said it was good Bloor checked. (RT 6149-54.) Bloor recalled that Petitioner had a lighter skin tone than Tulio, and that while Tulio bore some similarities, such as hair color, style, and mustache, Tulio was not the right height, had a different skin tone, and spoke differently than the man Bloor spoke to that evening. (RT 6153-58.)

Ronald Tulio, who was acquainted with Jillette Mills and Bonnie Guthrie, dated and lived with Susan Knoll in Pasadena from July 1983 until February 1984, after which Knoll moved out to live with Mills in Los Angeles. (RT 6161-66.) Tulio was interviewed by several police officers after the homicides, and noted that when they broke up, Knoll took a photo album containing some photos of him and his family members. (RT 6166-67.) Tulio stated that he met Knoll in 1982 and took trips to San Diego to see her, where she lived at the time with a boyfriend. (RT 6166-71.) Knoll used a friend in Los Angeles named Bonnie as an excuse to see him when she was in town, and later, Knoll and Mills met through Tulio's friend Leon Herrera, who Mills had been dating. (Id.) Tulio acknowledged that Knoll would not let him help her move, that she did not want him to know her new address, and that they only maintained contact through her work. (RT 6171-73.) Tulio denied ever going to the Knoll/Mills apartment or knowing its location, stating that his relationship with Knoll ended when he was caught with another woman. (RT 6173-77.) The last time Tulio spoke to Knoll was on April 8; Knoll had the flu. (Id.) A woman named Alice called Tulio on April 11, asking if he had heard from Knoll, and he directed Alice to call Knoll's sister Sandra Pender in San Diego. (RT 6177-82.) Alice called back Thursday morning crying, said the girls were dead in the apartment, and Tulio contacted the police, who refused to give him information over the phone. (Id.) Tulio spoke to police on April 12 and came into contact with Officer Bloor at this time. (RT 6182-88.) Tulio also tried to contact Guthrie after learning of the Knoll/Mills murders, and on one occasion a police officer answered, but again did not provide details. (Id.) Tulio acknowledged that he was arrested by the Culver City Police on Thursday, April 12 at 4 p.m, and that in the few days he was in custody, Janette Cullins was murdered in San Diego. (RT 6188-91.) Tulio stated that defense counsel spoke to him before calling him as a witness, and recalled counsel stating that if Culver City made a mistake in arresting him, they could have also made a mistake in arresting Petitioner. (RT 6191-92.)

B. Penalty Phase

The prosecution's penalty phase presentation rested largely on the circumstances of the crimes charged and other crimes evidence. Additional evidence was introduced regarding two prior felony convictions Petitioner suffered for burglaries in Oregon and Alaska, and regarding weapons (shank and pipe) found in Petitioner's jail cell during his county jail incarceration in early 1991.

The defense presentation focused on Petitioner's harsh childhood and upbringing in Nome, Alaska, as well as his drive to better himself once released from jail by becoming a successful cameraman. The defense presented evidence that Petitioner descended into drug and alcohol abuse once his marriage ended and his contact with his children limited.

1. Prosecution's Presentation

William McFarland, a sheriff working at the San Diego Central Jail, stated that on February 4, 1991, during an unscheduled cell check that day, he found two weapons in Petitioner's cell, including a homemade knife (or shank) in the mattress lining of his bunk bed, as well as a long metal pipe, which could also be used as a weapon. (RT 7294-7303.)

Detective Carlos Chacon, a former prison gangs officer with the San Diego Police Department, testified that in his experience a shank such as the one found in Petitioner's cell is an offensive weapon, often used to inflict serious bodily harm. (RT 7348-58; 7396-99.)

The prosecutor introduced the judgments from Petitioner's burglary convictions in Oregon in 1974 and Alaska in 1977, with Petitioner's stipulation. (RT 7411-17.) Over Petitioner's initial objection but eventual stipulation, the prosecution also introduced Petitioner's Ventura County convictions for forcible rape, forcible oral copulation, assault and residential robbery. (Id.; RT 8547.)

2. Defense Presentation

Jerry Lee Carter, Petitioner's older brother, testified that the family grew up in Nome, Alaska, a town of about 3,000 people, and that his mother, who was half-Eskimo, married Jim Carter, his stepfather, when Petitioner was five. (RT 7435-36.) Carter stated that their mother and stepfather drank heavily, argued, and often became physically violent with one another after drinking. (RT 7436-39.) Carter also recalled that his mother was excessive in disciplining the children, as the children "would have to go pick out a branch, or we had a belt, we had a razor strap." (RT 7438.) Carter stated that Petitioner ran away several times, sometimes for several days at a time before being found. (RT 7439-45.) Carter stated that their parents often returned home at 5 a.m., when the bars closed, and the children often hid to avoid confrontations. (RT 7444-45.) Carter recalled an incident when Petitioner was five or six, when Petitioner attempted to stop their mother from going to the bar by holding onto the bumper of the car, cutting up his feet in the process, stating that their mother merely cleaned Petitioner up and returned to the bar. (RT 7449-51.) Carter also recalled an occasion when their parents had set up testing for Petitioner and did not want him to run away beforehand, so "they put a length of chain on him to the bed to keep him home so he wouldn't run away," lasting a day or two. (RT 7452.) Carter also recalled Petitioner was later sent away by their parents. (RT 7446-47.)

Carter recalled seeing Petitioner as an adult, happy, with his wife and twin boys. (RT 7454.) After Petitioner's divorce, Carter recalled that while Petitioner was "pretty bitter against his wife, but he was great with my children." (RT 7455.) Carter stated that alcoholism was rampant in Nome, the suicide rate was high, as was the rate of depression. (RT 7456.)

On cross-examination, Carter conceded that when he was punished as a child, he generally deserved it. (RT 7460-61.) Their mother worked in Nome as a prison matron and they attended church and Sunday school as children. (RT 7462-65.) Carter conceded that Petitioner lived away from their residence a substantial amount of time starting at the age of eight, that they did not have much contact with one another after that point, and that Petitioner's behavior was the impetus for the testing. (RT 7465-71.) Carter also acknowledged that the chains used on Petitioner were lengthy enough to allow him movement throughout the home, while still confining him to the residence. (Id.)

Carter had contact with his brother in later years, once possibly when Petitioner was incarcerated, and on another occasion when Petitioner visited him at college. (RT 7473-74.) Carter did not attend his brother's wedding. (RT 7476.) Carter was embarrassed by Petitioner's legal troubles and tried to stay separate from it, and thus didn't recall some of the dates of conviction, incarceration, or other dates as they pertained to Petitioner's life. (RT 7476-77.) Carter did recall a period, when Petitioner was married, that he and Petitioner both lived in Anchorage and they had dinner together on several occasions. (RT 7478.) Carter also recalled seeing Petitioner in 1983, after the breakup of his marriage, and recalled Petitioner being unhappy with the child support and inability to see his children. (RT 7480.) After that, Carter spoke to Petitioner on a few occasions, over the phone, but did not recall anything out of the ordinary. (RT 7485-86.) Carter spoke to Petitioner at some point after his arrest and did not detect any sort of mental problems. (RT 7493.)

Polly Reasner, Petitioner's younger sister, stated that she was born and raised in Nome, then the family moved to Anchorage after her father died in 1973 or 1976. (RT 7523-25.) Reaser identified a photo taken of her and Petitioner when she was eight or nine, and stated that while she knew he was her brother, she had not seen Petitioner prior to that time. (RT 7531.) Reaser concurred that both parents worked and that her parents spent additional time away from home, drinking in bars until 4 a.m. (RT 7543-45.) Reaser recalled incidents of violence between her parents, but did not recall Petitioner being with the family when she was younger, and did not recall either her parents or brother Jerry talking about him. (RT 7545-46.)

On cross-examination, Reaser reasserted that she had no recollection of contact with Petitioner when she was younger. (RT 7547-48.) Reaser stated that while she did not recall Petitioner being present when she was younger to witness the incidents of violence, she did recall that Petitioner was home again after she was nine or ten, and he would have witnessed those incidents, noting that her parents "got drunk all the time. It wasn't just once a month." (RT 7549-50.) Reaser acknowledged that she and her sister stayed in their room during these incidents, and that their parents did not physically abuse them after drinking. (RT 7551.) Reaser acknowledged that her parents sometimes worked twelve hour shifts opposite one another and that for a time her father was Chief of Police in Nome. (RT 7565-66.) Reaser stated that she recalled two instances of contact with Petitioner in Nome, that she "knew him from all of the time in Anchorage," and that they "lived together in Fairbanks too." (RT 7567.)

Bertha Adsuna, an Eskimo elder who has lived in Nome for nearly 50 years, knew Petitioner and his family both before and after his mother married Jim Carter. (RT 7578-83.) Adsuna stated that she knew Petitioner's mother frequented the bars, acknowledged that alcoholism was a significant problem in Nome, and recalled Petitioner spent a lot of time alone. (RT 7583-84.) Adsuna stated that she never saw Petitioner well dressed or treated well, unlike his brother Jerry, who was always better dressed and more protected. (RT 7584-85.) Adsuna stated that she worked with Petitioner's mother in corrections, reasserting that Petitioner was treated differently than his brother. (Id.) After Petitioner's mother married, Adsuna recalled them frequenting bars together. (RT 7589.)

On cross-examination, Adsuna conceded that she knew what it was like to be neglected, as she was a middle child who received hand-me-down clothing. (RT 7591.) Adsuna did not recall Petitioner running away, and conceded that she only saw Petitioner on occasion, as she did not associate with his family outside of work. (RT 7592-93.) Adsuna was aware that Petitioner had been in legal trouble and had been arrested. (RT 7594.)

On redirect, Adsuna recalled Petitioner moving back to Nome as an adult, married, with twin boys. (RT 7596.) Adsuna's son worked with Petitioner, and after her son was later killed, Petitioner brought her a photo of her son and refused compensation for it. (RT 7596-97.) Petitioner attended an Eskimo Elder's conference and filmed it and appeared proud of his heritage, while Adsuna noted that Petitioner's mother had never attended such conferences. (RT 7597-98.)

Harriet Brown, a missionary in Nome between 1947 and 1967, was a pastor at a mostly Eskimo church, and stated that the largest problem with the native population was alcohol. (RT 7616- 18.) Child neglect was also a problem she frequently saw, and Brown kept her doors open to take in those that needed help. (RT 7618-19.) Brown knew Petitioner's family, would pick up the children, including Petitioner, for Sunday school, as the parents were not involved in the church. (RT 7620-21.) Brown recalled the young girl and older boy were always dressed well, but Petitioner was consistently not dressed as nicely, nor was he treated nicely by his mother. (RT 7621-24.) Brown did not recall Petitioner presenting any problems in Sunday school. (Id.)

On cross-examination, Brown acknowledged that her contact with the family was largely through the Sunday school program, except for Jim Carter, who was police chief for a period of time. (RT 7625.) Brown believed she knew Petitioner for approximately two or three years, when he was ten to twelve. (RT 7628-29.) Brown stated that it was the father that wanted the children to attend Sunday school, and Mrs. Carter did not appear anxious to have them attend. (RT 7632-33.) Brown had not seen Petitioner since his involvement in the Sunday school program. (RT 7635-36.)

Beth Farley, who grew up and attended school with Petitioner as a child, recalled Petitioner leaving Nome as a child. (RT 7636-40.) Petitioner being alone a lot, was ignored by his own family, and spent more time with Farley's family than his own. (RT 7641-43.) In later years, Farley recalled seeing Petitioner in Nome a few times, and later in Anchorage, recalled meeting his wife and sons, and saw him as a doting and proud father. (RT 7648-51.) After the break up of Petitioner's marriage, "[h]e looked lost." (RT 7651.) Farley left Nome because of the alcohol abuse, stating that even children drank, and many died, either freezing to death or suicide. (RT 7653-56.) Farley also stated that she had witnessed and experienced prejudice against people of mixed race in that area, as her son was part Eskimo. (RT 7656-60.)

On cross-examination, Farley acknowledged that she was friends with Petitioner's mother, and they were neighbors for a time. (RT 7662-63.) Farley stated that Petitioner's mother was part Eskimo, and had a job with the city of Nome, and it did not appear she was suffering consequences of prejudice in that regard. (RT 7664.) Farley stated that Jerry Carter suffered prejudice, as some parents told their children not to spend time with him as he was part Eskimo, yet some girls dated him anyways. (RT 7665.) Farley heard about the murders on the radio. (RT 7670-71.) When shown a phone bill containing her phone number, she did not recall speaking to Petitioner a few weeks before the murders, but noted that she shared a phone with Petitioner's mother at that time. (Id.) Farley had a conversation with Petitioner several weeks after his arrest, in which he sounded depressed and sad. (RT 7673.) When they heard about Petitioner's arrest, his mother became very depressed and Farley removed all the guns from her home. (RT 7675.) When she spoke to Petitioner on the phone, she did not ask, and he did not discuss, the crimes or charges. (RT 7679-80.)

Ruth Butts, who grew up in Nome and attended the same elementary school as Petitioner, recalled a time when something happened and people were searching for him. (RT 7681-87.) The population of the school at that time was mostly native or part native, and the minority was white. (RT 7694.) Those of mixed race were treated better than those who were full-blooded Eskimo. (Id.) It was common knowledge that Mr. Carter was not Petitioner's or Jerry's father, which subjected them to teasing. (RT 7695.) Butts accompanied her step-father to a bar after Sunday church and often saw Mr. Carter there as well, drunk. (RT 7696-97.) Her family later moved, but Butts recalled seeing Petitioner on occasion after that, both in Nome and having visited him at the McLaughlin youth detention center when he was a teenager. (RT 7697-7700.) Butts also saw Petitioner in later years, when he was in a work release program at a university, when he worked for a news station in 1979, and when they both attended a conference in 1980. (RT 7701.)

On cross-examination, Butts stated that when visiting Petitioner at the McLaughlin youth facility, she did not talk to him about why he was there, other than he was not happy that he was not at home. (RT 7705-06.) On redirect, Butts stated that the juvenile facility was the only one in Alaska, and was not solely for children who committed crimes, but also included those who ran away or left home due to abuse, although Butts did not know why Petitioner was there. (RT 7711-12.)

Susan Broughton stated that she worked as a house parent at the Jesse Lee Home in Seward, Alaska, 1200 miles from Nome, starting in 1965. (RT 7714-17.) The children at the center often had parents that were unable to care for them. (Id.) Broughton stated that all 35 children were native children, ages 6 to 17, and that she was in charge of the younger boys. (RT 7744-48.) Broughton was there six months, did not specifically recall Petitioner, but recognized the admission form bearing Petitioner's name as from the Jesse Lee Home. (RT 7750.) Broughton acknowledged that there was discrimination towards native people at that time, and Seward was a predominantly white community. (RT 7751.) On cross-examination, Broughton denied that the children were usually discipline problems, stating that she did not encounter big problems during her time there. (RT 7752.) Broughton acknowledged that she did not know why Petitioner was placed there, and she was not there at the same time he resided there. (RT 7752-53.) Anyone with more than one quarter Eskimo blood was considered native, and Broughton stated that Petitioner appeared native to her. (RT 7753-55.) Those in the Seward area referred to the home as one for "unwanted children." (RT 7755-56.)

Thomas Finegan, a counselor at the McLaughlin Youth Center, stated that he met Petitioner at the youth center and knew him during two different periods. (RT 7758.) The first period was in 1969, when Petitioner was about 14 or 15, and recalled Petitioner as withdrawn and shy. (RT 7758-61.) Petitioner's initial stay at the center was short, about 30 days, then he returned a year or two later. (RT 7762.) Finegan only recalled Petitioner because his wife's roommate asked to arrange visitation, otherwise he would have no recollection, as he does not recall any incidents involving Petitioner or anything else that would make him stand out. (RT 7768-69.)

On cross-examination, after reviewing records provided by the prosecution, Finegan acknowledged those records indicated that Petitioner came to the center after being at a place called the Alcanta Youth Camp, at which he was placed after committing a residential burglary where he pointed a pistol at someone, and that he had run away from the camp several times. (RT 7771.) The same records showed Petitioner was released from the center in 1970, to his parents' custody, committed a residential burglary, and was then placed in a foster home. (RT 7772.) Petitioner was then arrested for joyriding, breaking and entering and assault and battery, after which he returned to the McLaughlin center before again being released to his parents in 1972. (RT 7772-73.) Finegan agreed that McLaughlin was a secure facility with infrequent escapes, while the Alcantra camp was open. (RT 7774-75.)

A. Bertram Matsumoto, a probation officer who worked at the McLaughlin facility, recalled seeing Petitioner at McLaughlin in 1969. (RT 7779-80.) Matsumoto recalled Petitioner being one of the youngest persons on the unit, very shy, not a management problem, and recalled him associating more with the Native children. (RT 7781-82.) Matsumoto came into contact with Petitioner again in 1978 at the Eagle River Correctional Center near Anchorage, an adult facility, where Petitioner was sent after a burglary conviction. (RT 7784-85.) Petitioner became involved in videotaping and video production while at the facility, and was furloughed to assist in video work at the University of Alaska. (RT 7785-87.) After Petitioner's parole, he went to work for the Alaska court system and television station in Anchorage. (RT 7788.)

On cross-examination, Matsumoto reviewed and discussed Petitioner's juvenile records, which he had not previously reviewed. (RT 7793-98.) Matsumoto, who had been Petitioner's case worker at Eagle River, only had access to the adult records in that capacity, and therefore knew about the burglary convictions in Oregon and Alaska, and his parole in 1979, after which he did not have further contact with Petitioner. (RT 7807-13.) Nothing in the records indicated to Matsumoto that Petitioner suffered from mental disturbance or disease. (RT 7813-14.)

PattyLynn Drewery, who works for the University of Alaska and previously worked for Channel 2 news, first met Petitioner in 1978 when he was still incarcerated, when she went to do a story on him and his video work at the facility. (RT 7847-49.) Upon his release, he worked for Channel 2 under her supervision and was a very good worker. (RT 7851-52.) They did general news reporting and other projects, and Petitioner did not only shoot film, but often worked with lighting, editing, and other work. (RT 7852-54.) Petitioner was an excellent cameraman, and reporters, including Drewery, would request to work with him. (RT 7854.) Drewery recalled seeing Petitioner around the time of his marriage and found that he appeared to be a loving father. (RT 7857.) On cross-examination, Drewery stated that Petitioner was a good cameraman who was able to make a living at it. (RT 7858-60.) Petitioner's part Eskimo heritage was not a deterrent to hiring him. (RT 7861.) After working together, she and Petitioner only spoke infrequently, but they had spoken since the crimes, and she did not notice a mental defect. (RT 7861-63.)

Mary Alexander Wondsell first met Petitioner in 1979 or 1980 when he was looking for employment. (RT 7867-71.) Wondsell did not have funding to hire him, and he persisted, returning with a proposal, which convinced her to find a funding source with which to hire him. (RT 7872.) Petitioner worked as a newsletter editor, writer, and video person. (Id.) Petitioner did video work at an Elder's conferences in Nome and Wondsell found his work was often requested. (RT 7872-82.) She found Petitioner to be consistently happy, outgoing, neat, and clean. (RT 7882-85.) Wondsell acknowledged that most groups experienced discrimination, but that Eskimos bore the brunt of such behavior. (RT 7883.)

Stanley Reed, who met Petitioner in his capacity as an educator at the Eagle River Correctional Institution, stated that Petitioner assisted in producing videos for the institution. (RT 7947-50.) Reed had tried interesting others in the work, but Petitioner was the only one who followed up with it and continued the work. (RT 7951.) Reed found Petitioner to be courteous and did not get himself into trouble. (RT 7953.) On cross-examination, Reed stated that Petitioner informed him that he had been incarcerated for burglary. (RT 7956.)

William Green, a former correctional administrator, stated that when he was appointed to a commission to investigate how the correctional system handled minorities, Petitioner accompanied them on their travels as a cameraman. (RT 7959-60.) Green and Petitioner roomed together. (Id.) Green cannot recall if Petitioner was incarcerated at the time or under any sort of restraint. (RT 7961.) Green found Petitioner to be enthusiastic about his job. (RT 7963.) On cross-examination, Green recalled previously doing some volunteer work in the system, and coming into contact with Petitioner at an institution where he was incarcerated. (RT 7964-65.)

Mark Olson, a video producer in Alaska, knew Petitioner through his work as a cameraman at Channel 2, and again in Nome in 1981, when he obtained Petitioner's assistance in covering the Iditarod race. (RT 7965-70.) Olson also saw Petitioner's wife and children at that time. (RT 7971.) On cross-examination, Olson stated that he saw Petitioner's family on more than one occasion, and at a later time, Petitioner was spending more time away from his family. (RT 7974.) Olson had spoken with Petitioner since his April 1984 arrest, but they did not discuss the charges, and Olson did not notice a mental defect. (RT 7974-75.)

Ed Coll, a community college instructor in Hawaii, met Petitioner when he worked at the University of Alaska in 1978 when they worked together on some public service announcements (PSA's) at Eagle River. (RT 7978-79.) Petitioner assisted Coll in making the PSA's, and ran into him after his release, but they did not directly work together after that. (RT 7981-83.) Coll saw Petitioner professionally and socially until about a year prior to his 1983 move to Hawaii. (RT 7985.) After the move, Petitioner came to visit Coll in Hawaii in December 1983, staying about a month. (RT 7986.) Coll noted that Petitioner had been enthusiastic about his work in the past, but in late 1983, he was not motivated at all in his work. (RT 7987.) Coll received a phone call from Petitioner a few months after the visit, where Petitioner mentioned sailing to Rio, and did not sound okay. (RT 7992-93.) Coll maintained irregular contact with Petitioner mostly via phone and letter throughout their acquaintance. (RT 7993-94.)

They did not discuss the charged crimes. (RT 7994.)

Carol Bain, Ed Coll's wife, first met Petitioner in 1979, knew he had been incarcerated in the past, and saw him socially during the time he was employed at Channel 2. (RT 7996-99.) Bain was invited to, and attended, Petitioner's wedding reception, and visited their home in Nome on several occasions. (RT 8000.) Bain recounted an incident where they were having coffee one winter morning when they noticed a neighboring building on fire, to which Petitioner ran outside without a coat in order to attempt to alert the building's inhabitants. (RT 8001-03.) Bain also babysat Petitioner's children on occasion. (RT 8007.) On cross, Bain stated that she was aware Petitioner's conviction and incarceration was for burglary, but was not aware of any details. (RT 8008.) The wedding was in Anchorage, the reception was at Petitioner's mother's home, and Bain met his mother and sister. (RT 8008-09.) During Petitioner's December 1983 visit, Bain and her husband attempted to assist Petitioner in getting a job, but he was unmotivated to do so. (RT 8010-11.) Petitioner was not drinking excessively or using drugs at that time, to her knowledge, but appeared depressed. (RT 8011-12.) Bain had communicated with Petitioner since his arrest, but they had not discussed the crimes. (RT 8013.)

Richard Taylor, a television producer, first met Petitioner in the early 1980's through his work and later hired him to work at the University of Alaska. (RT 8019-21.) Taylor was Petitioner's immediate supervisor and they worked together fairly closely on a series of educational films about cold water survival. (RT 8021-26.) Taylor described Petitioner's camera work as good, and noted that Petitioner was a flexible and qualified cameraman. (RT 8026-31.) On cross-examination, Taylor noted that he worked with Petitioner on the project for a six month period, that Petitioner was cooperative, got along with other people, and did not appear to suffer from mental problems or be abusing alcohol or drugs. (RT 8043-46.) Taylor stated that he had not had contact with Petitioner since his arrest but that based on his work, would have given him a positive recommendation. (RT 8046-47.) Taylor characterized Petitioner as introverted and withdrawn. (RT 8049.)

Robert Jenkins, a photographer and producer on the cold water survival video series, worked with Petitioner on that project and others over a period of several years. (RT 8050-55.) Jenkins knew Petitioner at the end of his marriage. (RT 8056.) Petitioner became less reliable, well-kept, and dependable during this time. (RT 8059.) Jenkins became aware that Petitioner developed a severe alcohol problem, observed Petitioner using illegal drugs, which escalated when Petitioner's marriage was breaking up. (RT 8059-61.) Jenkins maintained contact with Petitioner over the years and had phone conversations with him in early 1984, and recalled that Petitioner sounded quite fearful and paranoid, which was of concern, as Jenkins himself had suffered with an addiction. (RT 8062.) Jenkins and Petitioner discussed the possibility of meeting up in Philadelphia, but that never occurred, as Petitioner was arrested. (RT 8062-63.) On cross examination, Jenkins stated that Petitioner used cocaine, and that he and Petitioner drank quite a bit together. (RT 8065.) Jenkins met Petitioner's mother, and visited Nome with him, but did not feel Petitioner was very fond of the area. (RT 8066-67.) Jenkins also visited Petitioner in Seattle and again had concerns about Petitioner's drinking at that time, as Petitioner had a minor car accident. (RT 8068-70.) Jenkins also spoke with Petitioner after his arrest, and saw him in jail the previous weekend, but they did not discuss the case or charges at that time. (RT 8073-74.) On prior occasions, Jenkins had asked about the crimes, to which Petitioner stated he was innocent and had been framed. (RT 8074.)

Rob Stapleton, a photojournalist and friend of Petitioner's who he first met in 1979, stated that he was familiar with Petitioner's work and had on occasion loaned out his camera equipment to Petitioner. (RT 8079-84.) The quality of Petitioner's camera work improved over the years he knew him, and they, along with Andrew Holtz, worked together on the same stories at times. (RT 8085-87.) Stapleton last saw Petitioner in late 1983 in Alaska after his divorce, at which time Petitioner appeared depressed, dejected and quiet. (RT 8088.) Stapleton had been the best man and photographer at Petitioner's wedding, Petitioner had participated in Stapleton's wedding, and the families had spent time together. (RT 8089.) When Petitioner's marriage was breaking up, Stapleton recalled him sleeping in his car and appearing upset and rattled. (RT 8090-91.) Stapleton did not recall providing Petitioner with his brother Vince's address or contact information or discussing Petitioner visiting Vince in Ventura. (RT 8096.) Petitioner contacted Stapleton when he was staying in Seattle in mid 1983, and Stapleton saw him at Christmas time in 1983 in Alaska. (RT 8096-97.) Stapleton was also contacted by Ventura County authorities regarding the last time he saw Petitioner, and acknowledged having several phone conversations with Petitioner in late March 1984. (RT 8098-8100.) At that time, Petitioner told Stapleton he was visiting Stapleton's brother Vince, sounded upbeat, and stated that he was meeting people and having a good time. (RT 8100-01.) Petitioner had contacted him a few times since his arrest, but they spoke mostly about jail conditions, and Petitioner did not reply when Stapleton asked him about the charges or crimes. (RT 8102.)

Melissa Wells Glick worked as an anchorperson at Channel 2 in Anchorage for about six months, was new to the field at that time, and Petitioner helped her a great deal by teaching her about editing and other technical things. (RT 8104-09.) Glick socialized with Petitioner on occasion, met his wife, and stated that the quality of his work was good. (RT 8110-11.) Glick worked more with the other cameraman, because Andrew Holtz "monopolized" and "handpicked" Petitioner, as Holtz had more seniority. (RT 8112-13.) On cross-examination, Glick stated that she had some communication with Petitioner since his arrest, but that they did not discuss the charges, and she has not looked into the case, but as she did not see things with her own eyes, she could not say for sure if Petitioner was guilty or not. (RT 8113-16.)

Lennart Bourin, a news producer and former cameraman who now works for ABC news, did not know Petitioner, but had reviewed several dozen tapes of his work, as well as a resume tape. (RT 8154a-61.) It was clear some of the beginning work was done using poor equipment and the later work with better equipment. (RT 8169-71.) Bourin stated it appeared Petitioner was largely self-taught based on composition and framing in early work, and the improvement shown in later work. (RT 8175-76.) On cross-examination, Bourin agreed that he did not have direct knowledge of Petitioner's involvement in the work he reviewed, and that the pieces he reviewed were edited and did not include raw footage. (RT 8179-81.)

Deputy McFarland was recalled to testify about the location where the shank was found at the Central Jail, stating that Petitioner was located in module 5A cell 3 in the weekly records for three weeks prior to February 3, 1991, but that no records were kept of changes within the modules. (RT 8537-38.) On cross-examination, McFarland stated that on February 4, the day the shank was found, Petitioner was in cell 2. (RT 8538.) Petitioner was in cell 2 four weeks prior to the date the shank was found, and added that the purpose of the records was not to reflect the cell in which each inmate resided, but the module location of each inmate. (RT 8539-40.) McFarland also acknowledged occasional problems with the ways the cells are counted, as cell 2, as counted from left to right, would be listed as cell 3 if counted from right to left. (RT 8541-42.) The inmates were away from the module when the shank was found, but McFarland testified that he later verified the shank was found in Petitioner's cell. (RT 8544-45.)

The defense concluded its presentation by playing a video compilation of some of Petitioner's camera work for the jury. (RT 8546.)

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 in state proceedings, which include the direct appeal, as well as the first (California Supreme Court Case No. S096874), second (Case No. S153780), and/or third (Case No. 180336) state habeas petitions. The claims are as follows: Claim 1 - Trial Court Error and Ineffective Assistance of Trial Counsel in Voir Dire; Incidents of Juror Misconduct (portions of the claim were raised as Claim XV on direct appeal and as Claims One and Seventeen of the second state habeas petition, allegations of juror misconduct was raised as the only claim in the third state habeas petition)

Claim 2 - Ineffective Assistance of Trial Counsel - Guilt Phase (previously raised as

Claim II in the first state habeas petition and Claim Two in the second state habeas petition)

Claim 3 - Ineffective Assistance of Trial Counsel - Penalty Phase (previously raised as Claim II in the first state habeas petition and Claim Three in the second state habeas petition)

Claim 4 - Violation of Right to Competent Psychiatric Assistance (previously raised as Claim III in first state habeas petition and Claim Four in second state habeas petition)

Claim 5 - Incompetence to be Executed (previously raised as Claim Five in the second state habeas petition)

Claim 6 - Prosecutorial Misconduct (previously raised as Claim XVIII on direct appeal, Claim I in the first state habeas petition, and Claim Six in the second state habeas petition)

Claim 7 - Brady Violation (previously raised as Claim VIII in the first state habeas petition and Claim Seven in the second state habeas petition)

Claim 8 - Admission of Unreliable, Unconstitutional and Improper Evidence in

Aggravation (previously raised as Claim V in the first state habeas petition and Claim Eight in the second state habeas petition)

Claim 9 - Police Failure to Preserve "Wood Chips" Evidence Admitted at Trial (previously raised as Claim VI on direct appeal, Claim VII in first state habeas petition and Claim Nine in second state habeas petition)

Claim 10 - Trial Court Errors at Guilt and Penalty Phases (portions of the claim were raised as Claims I, IV, V XIII, XIV, and XVII on direct appeal and Claim

IV in the first state habeas petition; the entire claim was raised as Claim Ten in the second state habeas petition)

Claim 11 - Trial Court Judge Was Not Impartial (previously raised as Claim II on direct appeal and Claim Eleven in the second state habeas petition) Claim 12 - Insufficient Evidence to Sustain Convictions (previously raised as Claim

X on direct appeal and as Claim Twelve in the second state habeas petition)

Claim 13 - Cumulative Effect of Constitutional Violations (previously raised as Claim

XX on direct appeal, Claim IX in the first state habeas petition, and Claim Thirteen in the second state habeas petition)

Claim 14 - Errors in Jury Instructions (previously raised as Claim XIX on direct appeal and Claim Fourteen in the second state habeas petition)

Claim 15 - Denial of Full and Fair Suppression Hearing (previously raised as Claim

III on direct appeal, Claim VI in the first state habeas petition and Claim Fifteen in the second state habeas petition)

Claim 16 - Systemic Death Penalty Claims (portions of this claim were previously raised as Claims XII, XXII, and XXIII on direct appeal and Claim XI and XII in the first state habeas petition; the entire claim was raised as Claim Sixteen in the second state habeas petition)

IV. PROCEDURAL DEFENSES

Respondent asserts that this Court is prevented from reviewing the merits of several claims in the Second Amended Petition due to procedural default. Specifically, Respondent contends that portions of Claims 1, 2, 6, 7, 8, and 10 were rejected by the California Supreme Court on the basis of adequate and independent state procedural bars. Respondent also generally contends that relief on any claim contained in the federal Petition would require the creation of a new rule of criminal procedure, which is foreclosed under the Supreme Court's decision in Teague v. Lane, 489 U.S. 288 (1989).

A. Procedural Default

Generally, when a state court's rejection of a federal claim is based on a violation of a state procedural rule that is adequate to support the judgment and independent of federal law, a habeas petitioner has procedurally defaulted his claim. Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). A state procedural rule is adequate if it has been "firmly established and regularly followed" by the state court. Ford v. Georgia, 498 U.S. 411, 424 (1991). The procedural rule is independent if it is not "interwoven with the federal law." Michigan v. Long, 463 U.S. 1032, 1040-41 (1983). If a state procedural ground is an adequate and independent ground for dismissal, a federal court will not consider the merits of the claims unless a petitioner can show sufficient cause for the default and resulting prejudice, or show that a failure to consider the claims would result in a fundamental miscarriage of justice. See Coleman, 501 U.S. at 750.

In the instant case, Respondent contends that Petitioner has procedurally defaulted all or parts of Claims 1, 2, 6, 7, 8 and 10, as the California Supreme Court's rejection of those contentions rest on the existence of one or more adequate and independent state procedural bars. (Ans. at 72.) Respondent asserts that Claim 1, "insofar as it alleges ineffective assistance of counsel during jury selection, was untimely as it was presented for the first time in 2007 in Carter's second state habeas petition." (Id., citing Supp. Lodgment No. 1.) Respondent asserts that Claim 2, "insofar as it alleges that trial counsel was ineffective for failing to investigate third party culpability defense (except as it relates to defense witness Ronald Tulio's alibi"), was untimely as it was presented for the first time in 2007 in Carter's second state habeas petition." (Id.) Respondent further asserts that Claims 6 and 10, the latter claim "insofar as it alleges that the trial court improperly admitted the testimony of prosecution witness Polly Haisha," were both waived for failure to object in the trial court. (Id. at 72-73.) With respect to Claims 6 ("insofar as this claim relates to the prosecution's alleged misrepresentation of a valid warrant to search the stolen vehicle in which Carter was arrested"), 7 and 8, Respondent asserts that these claims were barred by the state supreme court pursuant to In re Dixon, 41 Cal.2d 756, 759 (1953). (Ans. at 72-73.)

1. Timeliness bar (In re Robbins/In re Clark)

On February 23, 2011, the Supreme Court issued an opinion in Walker v. Martin, 562 U.S. ___, 131 S. Ct. 1120 (2011), which held that California's timeliness requirement is an independent state ground adequate to bar federal habeas corpus relief. As a result of this decision, portions of Claims 1 and 2 appear to be procedurally defaulted pursuant to an adequate and independent state procedural bar and cannot be considered on the merits unless Petitioner is able to demonstrate cause and prejudice for the default, or that a fundamental miscarriage of justice would occur if these claims were not considered on the merits.

Petitioner asserts that he can demonstrate cause and prejudice for the default, as he has alleged ineffective assistance of both trial and appellate counsel for failing to raise these issues previously. (See Traverse at 40.) A claim of ineffective assistance of counsel for failure to raise the claims in the prior state appeal and state habeas petitions could conceivably constitute cause and prejudice sufficient to excuse a procedural default if the claims are found to have merit. See Edwards v. Carpenter, 529 U.S. 446, 451-52 (2000). Indeed, Petitioner specifically notes that he "was represented on both direct appeal and state habeas by the same court-appointed counsel," and asserts that "[s]tate habeas counsel therefore operated under a conflict of interest, as it was not within his interest to allege his own ineffectiveness in failing to bring certain claims on direct appeal." (Traverse at 40.) However, a determination on whether cause and prejudice exists would require the Court to engage in a detailed analysis of each claim.

Alternately, 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). Where it is clear that deciding the merits of a claim will prove to be less complicated and 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 decline to engage in a lengthy and involved cause and prejudice analysis. See Batchelor v. Cupp, 693 F.2d 859, 863-64 (9th Cir. 1982); see also Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002) ("Procedural bar issues are not infrequently more complex than the merits issues presented by the appeal, so it may well make sense in some instances to proceed to the merits if the result will be the same."), citing Lambrix v. Singletary, 520 U.S. 518, 525 (1997).

Thus, with regards to the noted portions of Claims 1 and 2, the Court will exercise discretion in its management of the case to reject those contentions on the merits and will decline to engage in a lengthy and complicated cause and prejudice analysis.

2. Pretermitted (In re Dixon)

The California Supreme Court stated "[t]he general rule is that habeas corpus cannot serve as a substitute for an appeal, and, in the absence of special circumstances constituting an excuse for failure to employ that remedy, the writ will not lie where the claimed errors could have been, but were not, raised upon a timely appeal from a judgment of conviction." In re Dixon, 41 Cal. 2d at 759.

a. Independence

As noted above, a state procedural rule is "independent" if it is not interwoven with federal law. See LaCrosse v. Kernan, 244 F.3d 702, 704 (9th Cir. 2001). In 1998, the California Supreme Court announced that it would thereafter decline to consider federal law in applying state procedural default rules. See In re Robbins, 18 Cal. 4th 770, 811-12 (1998).

Petitioner contends that the Ninth Circuit has held the Dixon rule is not an independent state procedural bar, citing to Washington v. Cambra, 208 F.3d 832, 834 (9th Cir. 2000) and Park v. California, 202 F.3d 1146, 1152-53 (9th Cir. 2000), in support of his position. (Traverse at 31 n.5.) However, the Ninth Circuit has clearly indicated that the independence of a procedural rule is examined at the time it is applied. See Park, 202 F.3d at 1151-53. The Ninth Circuit's decisions in Washington and Park each involved a state habeas petition filed prior to the California Supreme Court's decision in Robbins, and concerned only the independence of the Dixon rule prior to the Robbins decision. See Washington, 208 F.3d at 833 (state habeas petition denied in 1997); Park, 202 F.3d at 1149 (state habeas petition denied in 1996). In contrast, Petitioner's first state habeas petition was filed in 2001 and denied in 2006, over eight years after the California Supreme Court expressed its intention to cease consideration of federal law in the application of state procedural bars.

While the Ninth Circuit has not yet ruled on the independence of a post-Robbins application of the Dixon rule, Petitioner concedes that this district has found such an application to be independent of federal law. See Protsman v. Pliler, 318 F. Supp. 2d 1004, 1007-08 (S.D. Cal. 2004). This Court agrees with that conclusion, and holds accordingly that the California Supreme Court's 2006 decision applying Dixon to Petitioner's first state habeas petition was independent of federal law.

b. Adequacy

A state procedural rule is "adequate" if it is "clear, consistently applied, and well-established at the time of the petitioner's purported default." Wells v. Maass, 28 F.3d 1005, 1010 (9th Cir. 1994), citing Ford, 498 U.S. at 424. In Bennett v. Mueller, 322 F.3d 573 (9th Cir. 2003), the Ninth Circuit announced a test to determine the adequacy of a challenged state procedural bar, holding:

[T]he ultimate burden of proving the adequacy of the California state bar is upon the State of California . . . Once the state has adequately pled the existence of an independent and adequate state procedural ground as an affirmative defense, the burden to place that defense in issue shifts to the petitioner. The petitioner may satisfy this burden by asserting specific factual allegations that demonstrate the inadequacy of the state procedure, including citation to authority demonstrating inconsistent application of the rule. Once having done so, however, the ultimate burden is the state's. Accordingly, because it is the State who seeks dismissal based on the procedural bar, it is the State who must bear the burden of demonstrating that the bar is applicable-in this case that the state procedural rule has been regularly and consistently applied in state habeas actions.

Bennett, 322 F.3d at 585-86.

Here, the state must first "adequately ple[a]d the existence of an independent and adequate state procedural ground as an affirmative defense." Id. at 586. In the Answer, Respondent explicitly asserted that Claims 6, 7, and 8 were procedurally defaulted under Dixon, and asserted that the procedural rule in question was independent and adequate. (Ans. at 71-73.) As such, Respondent has satisfied the initial burden of pleading the Dixon procedural bar as an affirmative defense, and shifts the burden to the Petitioner. See Bennett, 322 F.3d at 586.

Once the state has met the initial burden, the burden shifts to the Petitioner to place the defense at issue, who "may satisfy this burden by asserting specific factual allegations that demonstrate the inadequacy of the state procedure, including citation to authority demonstrating inconsistent application of the rule." Bennett, 322 F.3d at 586. The Ninth Circuit has indicated that the adequacy of a state procedural rule is determined at the time of a petitioner's default. See Fields v. Calderon, 125 F.3d 757, 760-61 (9th Cir. 1997). "Because the Dixon rule precludes collateral review of a claim that could have been brought on direct appeal, the procedural default, though announced by the California Supreme Court when the habeas petition is denied, technically occurs at the moment the direct appeal did not include those claims that should have been included for review." Id. at 761. In this case, Petitioner's default with respect to the Dixon rule occurred on July 2, 1999, the date on which Petitioner filed his opening brief on direct appeal.

In the Traverse, Petitioner refers the Court to several cases in which California district courts have found the Dixon rule inadequate. (See Traverse at 33 n. 7.) Among these cases is Dennis v. Brown, 361 F. Supp. 2d 1121 (N.D. Cal. 2005), in which the petitioner cited to 200 capital habeas cases decided between 1980 and 2003 in order to demonstrate inconsistent application of the untimeliness, successiveness and pretermitted (Dixon) state procedural bars, and the district court held that the petitioner had met the interim burden of placing the procedural bars at issue. Id. at 1130-31.

Petitioner also cites to several cases in which California district courts have found the Dixon rule adequate, noting that those courts found the rule adequate "[o]nly when there has been a technical failure on the part of the petitioner to present any evidence at all have the courts ruled on behalf of the respondent and found the rule adequate." (Traverse at 33.)

As a related matter, the Court takes judicial notice of a capital habeas case from this district in which the Dixon bar was found inadequate. See Ayala v. Ayers, 2008 WL 1787317 (S.D. Cal. April 16, 2008) (finding Dixon rule inadequate at the time of the petitioner's direct appeal in 1997). Based on Petitioner's allegations and case citations, as well as the prior decision from this district finding the state court's application of the Dixon rule inadequate during the relevant time period, the Court is persuaded that Petitioner has met the interim burden under Bennett in this case.

The Ninth Circuit has repeatedly stated that the government bears the "ultimate burden" of proving the adequacy of a state procedural bar. Bennett, 322 F.3d at 585-86; see also King v. Lamarque, 464 F.3d 963, 967 (9th Cir. 2006). In the instant case, Respondent has failed to demonstrate that the Dixon bar is consistently applied, and has not met the "ultimate burden" of proving the adequacy of this state procedural bar. Accordingly, the Court cannot conclude that the California Supreme Court's reliance on Dixon is sufficient to bar this Court from considering Claims 6, 7, and 8 on the merits.

3. Contemporaneous Objection

Respondent contends that portions*fn4 of "Claim 6, regarding prosecutorial misconduct, was waived for failing to object in the trial court" and that "Claim 10, insofar as it alleges that the trial court improperly admitted the testimony of prosecution witness Polly Haisha, was waived for failure to object in the trial court." (Ans. at 71-72.) On direct appeal, the California Supreme Court rejected certain voir dire and guilt phase allegations in Claim 6, stating in relevant part:

Here, defendant failed to request an assignment of misconduct or an admonition with regard to any of the conduct he now challenges as improper. Accordingly, he has not preserved his claims on appeal.

Carter, 36 Cal. 4th at 1264. With respect to the identified portion of Claim 10, the California Supreme Court also rejected that claim, stating in relevant part:

Preliminarily, we observe that defendant did not object at trial based upon Evidence Code section 352 or 1101--a point acknowledged by defendant but apparently overlooked by the People--and therefore has not preserved this claim for our review. (See, e.g., People v. Boyette (2002) 29 Cal.4th 381, 424, 127 Cal.Rptr.2d 544, 58 P.3d 391.)

Carter, 36 Cal. 4th at 1256.

Respondent asserts that Claims 6 and 10 are procedurally defaulted, and notes that California's contemporaneous objection rule "has previously been found by the Ninth Circuit to be independent and adequate." (Ans. at 72-73, citing e.g. Paulino v. Castro, 371 F.3d 1083, 1092-93 (9th Cir. 2004); Rich v. Calderon, 187 F.3d 1064, 1069-70 (9th Cir. 1999); Vansickel v. White, 166 F.3d 953, 957-58 (9th Cir. 1999).) As noted above, with this assertion, Respondent has satisfied the initial burden of pleading the contemporaneous objection rule as an affirmative defense, and shifts the burden to the Petitioner. See Bennett, 322 F.3d at 586.

Petitioner contends that "the contemporaneous objection rule is not adequate, and was not clear, consistently applied, or well established at the time of Petitioner's trial because there was a 'capital case exception' to the rule." (Traverse at 34, citing People v. Bob, 29 Cal.2d 321 (1946).) In Bob, the California Supreme Court reasoned that "it would seem appropriate for this court to take a liberal view of the technical rules applicable to criminal cases generally." (Traverse at 34, citing Bob, 29 Cal. 2d at 328.)

While Bob involved a case in which the state supreme court reviewed a trial record and found a statement to be inadmissible hearsay despite trial counsel's erroneous objection on best evidence grounds, rather than on applicable hearsay grounds, Petitioner asserts that the California Supreme Court later applied the capital case exception to situations in which counsel failed to raise any objection at all. (See Traverse at 35, citing People v. Easley, 34 Cal.3d 858 (1983) and People v. Frank 38 Cal. 3d 711 (1985).) However, in Carpenter v. Ayers, 548 F. Supp. 2d 736, 746-48 (N.D. Cal. 2008), another California district court previously conducted a detailed analysis of this very contention, and found that "Bob, Easley and Frank do not create an ambiguity in California's contemporaneous objection rule." Id. at 748. This Court agrees with that conclusion, and accordingly rejects Petitioner's contention that the contemporaneous objection rule is inadequate due to a "capital case exception" to the rule.

Petitioner alternatively attempts to demonstrate the California Supreme Court's inconsistent application of this procedural rule by citing to dozens of cases in which he asserts the state supreme court has often noted or admonished a petitioner for failure to preserve the claim but have nonetheless addressed the claim on the merits. (Traverse at 36-37.) However, the Supreme Court has clearly and specifically stated that an alternative ruling on the merits does not impact the independence or adequacy of a state procedural rule. See Harris v. Reed, 489 U.S. 255, 264 n.10 (1989) ("[A] state court need not fear reaching the merits of a federal claim in an alternative holding. By its very definition, the adequate and independent state ground doctrine requires the federal court to honor a state holding that is a sufficient basis for the state court's judgment, even when the state court also relies on federal law.") Yet, Petitioner also cites to numerous decisions in which the "state court address[ed] claims on their merits without any mention of whether the defendant properly objected or requested an admonition," "ambiguous cases which appear to mix merits and procedural default review," cases "which expressly apply exceptions to the general rule of waiver to excuse the defendant's failure to object or request admonition," and cases in which the California Supreme Court's actions are "internally inconsistent, applying the bar to some claims which were not preserved, but not applying them to others." (Traverse at 37-39.)

Based on these cases, the Court concludes that Petitioner has met his interim burden under Bennett of demonstrating inconsistent application of the contemporaneous objection rule.

Meanwhile, Respondent has not offered any response to these citations or made any attempt to meet its "ultimate burden" of proving the adequacy of this state procedural bar. Bennett, 322 F.3d at 585-86; see also King, 464 F.3d at 967. As such, the Court cannot conclude that the California Supreme Court's application of the contemporaneous objection rule is sufficient to bar this Court from considering Claims 6 and 10 on the merits.

Ultimately, even were the Court to conclude that Petitioner failed to meet the interim burden under Bennett and hold the contemporaneous objection rule to be an adequate and independent state procedural bar, Petitioner contends that he is able to demonstrate cause and prejudice sufficient to excuse any procedural default. (Traverse at 39.)

In any event, as set forth below, the Court need not reach a decision on this procedural bar, as Claims 6 and 10 fail on the merits. See Franklin, 290 F.3d at 1232, citing Lambrix, 520 U.S. at 525.

B. Teague v. Lane

The United States Supreme Court, addressing perceived inconsistencies in its prior retroactivity jurisprudence, held that "new" constitutional rules of criminal procedure will not be applied retroactively to cases on collateral review unless they fall within two narrow exceptions. Teague v. Lane, 489 U.S. 288 (1989). A new rule is one that "breaks new ground or imposes a new obligation on the States or the Federal Government" or one whose "result was not dictated by precedent existing at the time defendant's conviction became final." Id. at 301. The two exceptions to the Teague rule are: (1) rules placing certain kinds of private individual conduct beyond the power of the criminal law to prohibit; and (2) procedures implicit in the concept of ordered liberty without which the likelihood of an accurate conviction is seriously diminished.

Penry v. Lynaugh, 492 U.S. 302, 305 (1989); Graham v. Collins, 506 U.S. 461, 478 (1993).

When the state properly argues that a "defendant seeks the benefit of a new rule of constitutional law, the court must apply Teague v. Lane before considering the merits of the claim." Caspari v. Bohlen, 510 U.S. 383, 389 (1994). Under Teague, habeas relief is generally unavailable if based "on a rule announced after [a petitioner's] conviction and sentence became final." Id. The first step in a Teague analysis, therefore, is to determine whether a petitioner is seeking the benefit of a constitutional rule announced after his or her conviction became final. See id. at 389-90.

However, in the instant case, with respect to the bulk of the claims in the Petition, the state only makes a brief and generalized mention of Teague in the Answer to the Petition, asserting that "[s]ince the state court's rejection of Carter's claims was not contrary to, or an unreasonable application of, clearly established and controlling United States Supreme Court precedent, relief on any claim in the Petition would require the creation of a new rule of criminal procedure. Relief predicated on retroactive application of a new rule of criminal procedure is foreclosed on collateral review. See Teague v. Lane, 489 U.S. 288, 299-301, 109 S. Ct 1060, 103 L. Ed. 2d 334 (1989)." (Ans. at 74-75.)

The Ninth Circuit has expressed its view on the duties placed on the state to properly raise and plead a claim made under Teague, holding that:

If a state seriously wishes to press Teague upon us, at a minimum Teague should be identified as an issue (indeed the first issue) on appeal, the new rule of constitutional law that falls within its proscription should be articulated, the reasons why such a rule would not have been compelled by existing precedent should be explained with particular reference to the appropriate universe of precedent, and an argument should be made why the rule contended for is not within one of Teague's exceptions.

Arredondo v. Ortiz, 365 F.3d 778, 781-782 (9th Cir. 2004).

Respondent only mentions Teague in the Affirmative Defenses section of the Answer to the Petition, but failed to develop the argument in the Answer or later pleadings, except with respect to portions of Claim 1 and 10. The Ninth Circuit places the burden on the state to articulate and present this argument and Respondent's burden to raise a Teague bar is not satisfied with a generalized reference to non-retroactivity and Teague at the outset of the Answer.*fn5 Accordingly, the Court will not conduct an analysis of whether Claims 2-9 and 11-16 are barred under Teague.

For purposes of the Teague analysis with respect to Claims 1 and 10, the Court notes that the California Supreme Court denied Petitioner's direct appeal on August 15, 2005, and denied rehearing on October 26, 2005. The Supreme Court denied certiorari on April 24, 2006, at which time Petitioner's conviction became final.

1. Claim 1

In Claim 1, Petitioner asserts in part that because "the trial court conducted voir dire in an improper and prejudicial manner," specifically, voir dire was conducted in open court rather than by sequestration, such error resulted in a violation of Petitioner's constitutional rights. (SAP at 68-69.) Respondent maintains that "[a]s there is no clearly-established rule of criminal procedure requiring individual voir dire in capital cases, to the extent Carter claims such procedure is constitutionally required, his claim is barred under Teague v. Lane, 489 U.S. 288." (Ans. at 82.)

Petitioner contends that the trial court's insistence in "conducting the voir dire in open court severely limited counsel's ability to get fair and accurate responses and properly determine bias from the prospective jurors." (SAP at 69.) In support, Petitioner cites to Witherspoon v. Illinois, 391 U.S. 501 (1968) and Mu'min v. Virginia, 500 U.S. 415 (1991). However, neither case articulates or compels imposition of the rule Petitioner advocates. In fact, in Mu'min, the Supreme Court declined to find a due process violation arising from a trial court's refusal to conduct individual voir dire using the petitioner's proposed questions in order to question prospective jurors on news accounts to which they may have been exposed, acknowledging that "[t]here is no single way to voir dire a juror, and I would not limit the trial judge's wide discretion to determine the appropriate form and content of voir dire questioning." Mu'min, 500 U.S. at 451 (Kennedy, J., dissenting.)

Accordingly, the Court has not been presented with case law indicating that sequestered voir dire is compelled by existing Supreme Court precedent. As such, Petitioner's proposed rule indeed "breaks new ground or imposes a new obligation on the State or the Federal Government," and therefore the Court's remaining inquiry is whether either exception to Teague applies to this "new" rule. Id. at 301. A rule disallowing open court voir dire in a capital trial does not either place private individual conduct beyond the power of the criminal law to prohibit, nor can such a rule be considered of a "watershed" nature. Id. at 311; see also Penry, 492 U.S. at 305; Graham, 506 U.S. at 478. Granting relief on this aspect of Claim 1 would result in the creation of a new rule of criminal procedure which would be barred under Teague. Moreover, even were this portion of Claim 1 not barred under Teague, it is without merit for the reasons set forth in the discussion below.

2. Claim 10

In Claim 10, Petitioner asserts in part that the trial court erred in denying his request for allocution, which, in combination with other trial court errors, violated his rights under the Fifth, Sixth, Eighth and Fourteenth Amendments. (SAP at 237.) Respondent contends that Petitioner "has pointed to no United States Supreme Court authority indicating that the right of allocution is constitutionally required," and argues that such a rule "would impose a new procedural requirements on California courts that was not dictated by precedent." (Ans. at 211.) Respondent also contends that because the proposed rule "falls within neither exception" to Teague, it is therefore barred. (Id.)

Petitioner generally notes that "a plea for mercy, or allocution, which, even though not recognized in California . . . has long been recognized as 'of utmost importance' to a sentencing court." (SAP at 237, citing Green v. United States, 365 U.S. 301, 304 (1961).) However, the Supreme Court specifically left open the issue of whether allocution is a right of constitutional magnitude. In Hill v. United States, 368 U.S. 424 (1962), the Supreme Court held that a federal sentencing judge acted in violation of the Federal Rules of Criminal Procedure in failing to inquire whether a criminal defendant had anything to say on his own behalf, yet explicitly noted that "[w]hether [habeas] relief would be available if a violation of Rule 32(a) occurred in the context of other aggravating circumstances is a question we therefore do not consider." Id. at 429.

In contrast, the Ninth Circuit has concluded that "allocution is a right guaranteed by the due process clause of the Constitution." Boardman v. Estelle, 957 F.2d 1523, 1530 (9th Cir. 1992). Yet, even the Boardman Court conceded that such a rule does not appear to be dictated by existing Supreme Court precedent. See id. at 1527 (in which the Ninth Circuit acknowledges that the Supreme Court in "Hill therefore left open the question of whether a defendant who asks the court to speak has a Constitutionally guaranteed right to do so.") Ultimately, Petitioner fails to articulate how the result he advocates is "dictated by precedent" when the Supreme Court has specifically declined to announce such a rule. Accordingly, Petitioner appears to seek relief that would require the creation of a new rule of criminal procedure that is not compelled by existing United States Supreme Court precedent.

It is clear that the first exception to Teague is not implicated in this instance, as a proposed rule guaranteeing a right to allocution would "neither decriminalize a class of conduct nor prohibit the imposition of capital punishment on a particular class of persons." Saffle v. Parks, 494 U.S. 484, 495 (1990). However, the Court finds superficial applicability of the second Teague exception, in that it appears arguable that denying a capital defendant a chance for allocution could "seriously diminish the likelihood of obtaining an accurate determination" at his sentencing proceeding. Butler v. McKellar, 494 U.S. 107, 116 (1990). Yet, the Supreme Court has clearly indicated that the second exception is of a limited scope and reserved for "watershed rules of criminal procedure," such the right to counsel in a criminal trial under Gideon v. Wainwright, 372 U.S. 335 (1963). See Saffle, 494 U.S. at 495, quoting Teague, 489 U.S. at 311. The Court is not persuaded that a rule guaranteeing the right to allocution at a capital sentencing proceeding is of comparable import. In any event, it is ultimately unnecessary for this Court to arrive at a conclusive determination as to whether or not Petitioner's proposed rule is barred under Teague, as Claim 10 is also without merit for the reasons outlined below. Accordingly, regardless of the Court's conclusion as to the applicability of the second Teague exception, Petitioner does not warrant habeas relief on Claim 10.

V. STANDARDS OF REVIEW

A. Standard of Merits Review under AEDPA

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. § 2254(a) (emphasis added).

In Lindh v. Murphy, 521 U.S. 320, 336 (1997), the United States Supreme Court held that the new provisions of the Anti-terrorism and Effective Death Penalty Act of 1996 ("AEDPA") "generally apply only to cases filed after the Act became effective." In capital habeas actions, cases are typically commenced by the filing of requests for appointment of counsel and stays of execution of the petitioners' death sentences. 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. AEDPA became effective on April 24, 1996, when the President signed it into law. See id. Accordingly, AEDPA applies to this case.

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).

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, but nonetheless 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).

On habeas review, the federal court "look[s] to the last reasoned decision of the state court as the basis of the state court's judgment." Franklin, 290 F.3d at 1233 n.3. "Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground." Merolillo v. Yates, 663 F.3d 444, 453 (9th Cir. 2011), quoting Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). In the instant case, portions of Claim 1 and Claim 16, as well as the entirety of Claims 6 and 9-15 were first raised on direct appeal and rejected in a reasoned decision prior to their subsequent summary denials on state habeas review. Accordingly, the Court must "look through" the later summary denials on habeas review to the reasoned opinion issued on direct appeal. Id. at 806; accord Johnson v. Williams, ___ U.S. ___, 133 S.Ct. 1088, 1094 (2013).

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 ." 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, ___ U.S. ___, 131 S.Ct. 770, 786 (2011), quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004).

Portions of federal Claims 1 (raised as Claim 1 in the second state petition in case number S153780 and as the entirety of third state petition in case number S180336) and 16 (raised as Claim XII in the first state petition in case number S096874 and Claim 16 in the second state petition), as well as the entirety of Claims 2-5 (Claims 2-4 were raised as Claims II.A, II.B, and III in the first state petition, respectively and Claims 2-5 were raised as Claims 2, 3, 4, and 5 in the second state petition) and Claims 7-8 (raised as Claims VIII and V in the first state petition, respectively, and Claims 7 and 8 in the second state petition) were summarily denied by the California Supreme Court.

In an Order dated September 13, 2006, amending in its entirety a prior order dated June 28, 2000, the California Supreme Court held:

The petition for a writ of habeas corpus, filed April 16, 2001, is denied, as follows.

Claim I is denied on the merits. To the extent this claim reasserts issues raised and rejected on appeal, it is procedurally barred under In re Waltreus (1965) 62 Cal.2d 218, 225. To the extent the claim is based upon the record and was not raised on appeal, it could and should have been raised on appeal and hence is barred under In re Dixon (1953) 41 Cal.2d 756, 759.

Claims II and III are denied on the merits.

Claims IV is denied on the merits. To the extent this claim reasserts issues raised and rejected on appeal, it is procedurally barred under In re Waltreus, supra, 62 Cal.2d 218, 225.

Claim V is denied on the merits. To the extent this claim reasserts issues raised and rejected on appeal, it is procedurally barred under In re Waltreus, supra, 62 Cal.2d 218, 225. To the extent this claim is based upon the record and was not raised on appeal, it could and should have been raised on appeal and hence is barred under In re Dixon, supra, 41 Cal.2d 756, 759.

Claim VI is denied on the merits. To the extent this claim reasserts issues raised and rejected on appeal, it is procedurally barred under In re Waltreus, supra, 62 Cal.2d 218, 225. To the extent this claim is based upon the record and was not raised on appeal, it could and should have been raised on appeal and hence is barred under In re Dixon, supra, 41 Cal.2d 756, 759. To the extent this claim asserts a violation of petitioner's rights under the Fourth Amendment, it is not cognizable on habeas corpus. (In re Harris (1993) 5 Cal.4th 813, 830; see also In re Clark (1993) 5 Cal.4th 750, 767 (Clark); In re Sterling (1965) 63 Cal.2d 486, 487-488; In re Lessard (1965) 62 Cal.2d 497, 503.)

Claim VII is denied on the merits. To the extent this claim reasserts issues raised and rejected on appeal, it is procedurally barred under In re Waltreus, supra, 62 Cal.2d 218, 225. To the extent this claim asserts a violation of petitioner's rights under the Fourth Amendment, it is not cognizable on habeas corpus. (In re Harris, supra, 5 Cal.4th at p. 830; see also Clark, supra, 5 Cal.4th at p. 767; Sterling, supra, 63 Cal.2d at pp. 487-488; Lessard, supra, 62 Cal.2d at p. 503.)

Claim VIII is denied on the merits. To the extent this claim reasserts issues raised and rejected on appeal, it is procedurally barred under In re Waltreus, supra, 62 Cal.2d 218, 225. To the extent this claim is based upon the record and was not raised on appeal, it could and should have been raised on appeal and hence is barred under In re Dixon, supra, 41 Cal.2d 756, 759.

Claims IX, X, XI, XII, and XIII are denied on the merits.

(Carter, California Supreme Court Case No. S096874.)

In an Order dated June 17, 2010, denying the second state habeas petition, the state supreme court stated in full:

The petition for a writ of habeas corpus, filed June 22, 2007, is denied as follows. All claims, except claims 5 and 16 (subclaim C), are denied on the merits. All claims are denied as untimely with the exception of claims 1 (subclaim D (with respect to Jurors Cigainero and Ridge)), 2 (subclaims C (with respect to the allegations concerning Fetal Alcohol Syndrome) and D (with respect to allegations concerning Tulio's alibi)), 3 (subclaims B, C, D, and E (insofar as they relate to allegations concerning child abuse and Fetal Alcohol Syndrome)), 5, 8 (insofar as it relates to allegations concerning Fetal Alcohol Syndrome), 13, 16, and 17. (In re Robbins (1998) 18 Cal.4th 770, 799, fn. 21; In re Clark (1993) 5 Cal.4th 750, 782-787.) Except insofar as they allege ineffective assistance of counsel, claims 1 (subclaims A and B), 6 (subclaims C.1-C.3, and D), 9, 10 (subclaims A-H), 11, 12 (subclaims B-C), 14, and 15 are denied on the ground that these claims were raised and rejected on appeal. (In re Harris (1993) 5 Cal.4th 813, 829-841; In re Waltreus (1965) 62 Cal.2d 218, 225.) Except insofar as they allege evidence of child abuse and Fetal Alcohol Syndrome, claims 2 (subclaims B, C, E, F, and G), 3 (subclaims B, C, D, E, and F), 4, 6 (subclaims B, C.1, C.2, C.3, and D), 7 (subclaims B and C), 8, 9, 10 (subclaim F), 14 (insofar as it alleges the trial court should have instructed the jury not to consider the other crimes against Kim, Knoll, Mills, Guthrie, and Jennifer S. as evidence during the penalty phase), and 15 (insofar as it alleges petitioner was denied a full hearing on his motion to suppress) are denied on the ground that these claims were raised and rejected in petitioner's prior petition for writ of habeas corpus (S096874). (In re Clark, supra, 5 Cal.4th at p. 767; In re Miller (1941) 17 Cal.2d 734, 735.) Except insofar as they allege evidence of child abuse and Fetal Alcohol Syndrome or that prior post-conviction counsel was ineffective for failing to raise them, claims 1 (subclaims A, B, C, and D (insofar as it alleges Juror McAlpine improperly met with the other jurors after his dismissal)), 2 (subclaim D (insofar as it relates to third party culpability concerning the murder of Tok Kim), 10 (subclaims A, B, C, D, E, G, and H), 11, 12 (subclaims B and C), 14 (insofar as it alleges that several standard guilt phase instructions were erroneous), and 15 (insofar as it alleges that trial counsel provided ineffective assistance) are denied on the ground that they are successive, as they could have been raised in petitioner's prior petition for writ of habeas corpus (S096874) but were not. (In re Robbins, supra, 18 Cal.4th at p. 788, fn. 9; In re Clark, supra, 5 Cal.4th at pp. 767-768; In re Horowitz (1949) 33 Cal.2d 534, 546-547.) Except insofar as they allege evidence of child abuse and Fetal Alcohol Syndrome or ineffective assistance of counsel, claims 1 (subclaim D (insofar as it alleges Juror McAlpine improperly met with the other jurors after his dismissal)), 6 (subclaim B), 7 (subclaim B), and 8 are denied on the ground that they could have been raised on appeal but were not. (In re Harris, supra, 5 Cal.4th at pp. 825 & fn. 3, 826-829; In re Dixon (1953) 41 Cal.2d 756, 759.) Claims 5 and 16 (subclaim C) are denied as premature without prejudice to renewal after an execution date is set. (People v. Abilez (2007) 41 Cal.4th 472, 536; People v. Lawley (2002) 27 Cal.4th 102, 169, fn. 25.) To the extent claim 12 (subclaims B and C) alleges insufficiency of the evidence, it is not cognizable on habeas corpus. (In re Lindley (1947) 29 Cal.2d 709, 723.) To the extent claim 15 alleges a violation of the Fourth Amendment, it is not cognizable on habeas corpus. (In re Sterling (1965) 63 Cal.2d 486, 487.) (Supp. Lodgment No. 4.)

In an Order dated June 17, 2010, denying the third state habeas petition, the state supreme court stated in full: "The petition for writ of habeas corpus, filed on February 16, 2010, is denied." (Supp. Lodgment No. 8.)

Because these claims were denied without a statement of reasoning, the Court will conduct an independent review of the record with respect to Claims 1-5, 7-8, and 16*fn6 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"); see also Richter, 131 S.Ct. at 784 ("Where a state court's decision is unaccompanied by an explanation, the habeas petitioner's burden still must be met by showing there was no reasonable basis for the state court to deny relief.")

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.

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).

Moreover, 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." Pinholster, 131 S.Ct. at 1398. 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. Thus, pursuant to Pinholster, it does not serve the interests of judicial economy to hold an evidentiary hearing prior to conducting a review under section 2254(d). In the instant order, the Court will therefore conduct a section 2254(d) review along with the evaluation of whether Petitioner's federal habeas claims warrant an evidentiary hearing.

VI. DISCUSSION

In his merits brief and reply, Petitioner mounts a lengthy argument asserting that he is able to satisfy § 2254(d) with respect to each of his claims because "the state court process and analysis were unreasonable in light of California's own special procedures for resolving habeas petitions." (Pet. Merits Brief at 45.) Petitioner separately alleges that "with respect to his extra-record claims, the California Supreme Court made unreasonable credibility determinations on his supporting evidence." (Id.) Petitioner asserts that the state court's failure to issue an order to show cause ["OSC"] on each of his claims constituted an unreasonable application of clearly established federal law, because Petitioner had made out a prima facie case for relief with respect to each claim presented in the state petition and now contained in the federal Petition. Pursuant to California law, the "[i]issuance of an OSC signifies the court's preliminary determination that the petitioner has pleaded sufficient facts that, if true, would entitle him to relief." People v. Duvall, 9 Cal. 4th 464, 475 (1995). To sustain these arguments, Petitioner relies primarily on the Ninth Circuit's decision in Nunes v. Mueller, 350 F.3d 1045 (9th Cir. 2003). (Id. at 45-51, 80-82; Reply at 30-34.)

In Nunes, the state appellate court made credibility determinations without affording the petitioner an evidentiary hearing, in contravention of the state court's own policy to evaluate a petition for sufficiency by a determination of whether the petitioner made out a prima facie case for relief. See Nunes, 350 F.3d at 1050. Under California law, this involves a determination of "whether, assuming the petition's factual allegations are true, the petitioner would be entitled to relief." See Duvall, 9 Cal. 4th at 474-75. With respect to § 2254(d)(1), the Nunes Court found that the state court's decision involved an unreasonable application of clearly established federal law "because Nunes clearly made out a prima facie case of ineffective assistance of counsel under Strickland [v. Washington, 466 U.S. 668, 687 (1984).]" Id. at 1054. The Ninth Circuit reasoned that "[w]ith the state court having purported to evaluate Nunes' claim for sufficiency alone, it should not have required Nunes to prove his claim without affording him an evidentiary hearing- and it surely should not have required Nunes to prove his claim with absolute certainty." Id. With respect to § 2254(d)(2), the Ninth Circuit noted that the state court's "assessment of the evidence went well beyond its self-assigned task of assessing Nunes' allegations for sufficiency to determine whether Nunes would be entitled to relief." Id. at 1055. The Ninth Circuit was careful to note, however, that "we do not hold (or even hint) that the state court erred because it evaluated the facts differently than we did or because it arrived at a different result. Instead the state court's decision was objectively unreasonable because that court made factual findings (that is, it drew inferences against Nunes where equally valid inferences could have been made in his favor, and it made credibility determinations) when it rather claimed to be determining prima facie sufficiency." Id. at 1056. Nunes is readily distinguishable from Petitioner's case, as in Nunes, the state court made explicit factual findings and credibility determinations, while in Petitioner's case, the California Supreme Court denied Petitioner's 2001, 2007, and 2010 state habeas petitions on the merits without a statement of reasoning. Moreover, a more recent Ninth Circuit case appears to be of greater relevance to the situation at hand.

In Lambert v. Blodgett, 393 F.3d 943 (9th Cir. 2004), the Ninth Circuit found that the district court had erred in concluding that the state court's factual findings and conclusions of law were not entitled to deference because the state court had declined to grant the petitioner an evidentiary hearing. Id. at 948. The Ninth Circuit concluded that the district court failed to accord proper deference to the state court's determination under 28 U.S.C. § 2254(d), stating that "[w]e decline to hold that AEDPA's reference to 'adjudicated on the merits' authorizes us to review the form or sufficiency of the proceedings conducted by the state court. Thus, we will not read into 'adjudicated on the merits' a requirement that the state have conducted an evidentiary hearing, or indeed, any particular kind of hearing." Id. at 965-66.

The Lambert Court specifically noted that Nunes did not conflict with its decision, because in Nunes, the Court held that the "state court had put Nunes in a double bind, that Nunes had clearly stated a sufficient claim and that, '[w]ith the state court having purported to evaluate Nunes' claim for sufficiency alone, it should not have required Nunes to prove his claim without affording him an evidentiary hearing.'"

Lambert, 393 F.3d at 968 n.14, citing Nunes, 350 F.3d at 1054. The Ninth Circuit then stated that "[e]ven as we concluded that, under the circumstances, the state court should have granted Nunes an evidentiary hearing, we treated the state court's decision as one adjudicated on the merits and subject to AEDPA's deferential review." Id.

Petitioner contends that "[e]ach claim in Carter's petitions set forth adequate allegations, well supported by unchallenged evidence, which, under state law, entitled him to an order to show cause." (Pet. Merits Brief at 47.) Petitioner then states that "[t]he California Supreme Court, however, summarily denied his 2007 and 2010 State Petitions, signaling its determination that he failed to make out a prima facie case for each of his claims raised therein," and contends that these summary denials were therefore based on an objectively unreasonable application of federal law. (Id.) However, the fact remains that in Petitioner's case, it is clear that each claim was adjudicated on the merits by the California Supreme Court, whether or not the state court issued an OSC or ordered an evidentiary hearing on Petitioner's claims. (See section V.A., supra., detailing California Supreme Court denial of 2001, 2007 and 2010 state habeas petitions); see also Lambert, 393 F.3d at 969 ("[W]e hold that a state has 'adjudicated' a petitioner's constitutional claim 'on the merits' for purposes of § 2254(d) when it has decided the petitioner's right to post conviction relief on the basis of the substance of the constitutional claim advanced, rather than denying the claim on the basis of a procedural or other rule precluding state court review of the merits.") Moreover, the Supreme Court has clearly directed that "[s]section 2254(d) applies even where there has been a summary denial." Pinholster, 131 S.Ct. at 1402, citing Richter, 131 S.Ct. at 786. Accordingly, the Court will accord AEDPA deference to the state court's decision rejecting Petitioner's claims on the merits. See Lambert, 939 F.3d at 965-66, 968 n.14, citing Nunes, 350 F.3d at 1054. However, in evaluating Petitioner's claims, the Court will necessarily examine whether the California Supreme Court's decision to deny Petitioner's claims without the issuance of an OSC or further factual development constituted an objectively unreasonable application of clearly established federal law.

Petitioner separately contends that "[i]f the state court based its denial of Carter's extra-record based claims on credibility determinations, its decision was also an unreasonable determination of the facts under § 2254(d)(2)." (Pet. Merits Brief at 81.) Again, unlike in Nunes, where the state court made explicit credibility determinations and factual findings, the California Supreme Court denied Petitioner's 2001, 2007, and 2010 state habeas petitions on the merits without a statement of reasoning, and Petitioner therefore has no evidence that the state supreme court made any explicit credibility determinations or invalid adverse inferences with respect to the factual allegations presented in those petitions. Petitioner argues only that "[a]t least at face value, the evidence introduced by Carter in support of his claims - which included declarations from other defense team members and well-respected experts - was credible. Accordingly, to the extent the state court rested its decision on unsustainable credibility determinations, its decision is objectively unreasonable." (Id. at 83.) On the evidence presented, the Court is unpersuaded that the state court's summary denials on state habeas review involved an unreasonable determination of the facts.

With respect to evidence not previously presented to the state court, the 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). Accordingly, any evidence that was not previously presented to the California Supreme Court will not be considered by this Court in the evaluation of each claim under 2254(d). Based on the Court's review of the record, this includes material from trial counsel's files, currently under seal, and the deposition of second chair trial counsel, submitted by Respondent in conjunction with record expansion proceedings, labeled Ex. 1-14. (See Doc. Nos. 141-43, 148.) This also includes Petitioner's exhibits filed in support of the Motion for Evidentiary Hearing, including materials from trial counsel's files, witness interviews, memos, and expert reports, labeled Ex. A through Ex. AA. (See Doc. No. 113.)

If Petitioner is able to satisfy §2254(d) with respect to any of the claims in the federal Petition, the Court will then consider this additional evidence in determining whether relief is warranted on the claim or claims at issue.

A. Claim 1- Ineffective Assistance of Trial Counsel- Jury Selection; Juror Misconduct For Claim One, Petitioner appears to raise as a single claim an agglomeration of

several sub-claims for habeas relief.*fn7 He claims that the combination of claimed errors made during the jury selection process, together with claimed jury misconduct, denied him the Constitutional right to a fair and impartial jury. In particular, the Second Amended Petition describes Claim One like this: "Mr. Carter's convictions, confinement, and sentence are illegal and unconstitutional under the Fifth, Sixth, Eighth, and Fourteenth Amendments of the United States Constitution . . . because of the errors that occurred during jury selection and due to jury misconduct." (SAP at 66.) In his reply brief, Petitioner criticizes Respondent's "piecemeal attack" on Claim One. (Reply at 35.) Petitioner likewise criticizes the California Supreme Court for failing "to assess the totality of the circumstances" of his jury selection process. Id. Petitioner says, "the state court conducted a limited assessment of each individual error." Id. However, the combination of sub-claims as a single agglomerated claim has never been presented to the state courts. Therefore, it is an unexhausted claim and is denied. 28 U.S.C. § 2254(b)(1)(A).

The component sub-claims, on the other hand, have been individually presented to the California Supreme Court (either on direct appeal or in one of three state habeas corpus petitions) and each has been denied on the merits. Having reviewed the claims, this Court determines that the arguments and theories that supported or could have supported the California Supreme Court's decisions are consistent with the holdings of prior decisions of the United States Supreme Court. The California Supreme Court decisions on each issue were neither contrary to nor an unreasonable application of clearly established Federal law as determined by the Supreme Court of the United States. 28 U.S.C. §2254(d)(1); Pinholster, 131 S.Ct. 1388.

1. The Trial Judge Conducted Voir Dire Improperly

a. Voir Dire Conducted in Open Court

Petitioner claims that the manner in which voir dire was conducted denied him a fair and impartial jury. He claims that conducting the voir dire in open court (rather than sequestering) violated his constitutional rights under Witherspoon v. Illinois, 391 U.S. 510 (1968). The California Supreme Court denied this claim on direct appeal. Carter, 36 Cal. 4th at 1247-48. Witherspoon says nothing about the constitutionality of voir dire conducted in open court. Instead, the Supreme Court has said that, "[n]o hard-and-fast formula dictates the necessary depth or breadth of voir dire."Skilling v. United States, 130 S. Ct. 2896, 2917 (2010), citing United States v. Wood, 299 U.S. 123, 145-146 (1936) ("Impartiality is not a technical conception. It is a state of mind. For the ascertainment of this mental attitude of appropriate indifference, the Constitution lays down no particular tests and procedure is not chained to any ancient and artificial formula."). On this claim, the California Supreme Court's decision was neither contrary to nor an unreasonable application of clearly established Federal law.

b. Voir Dire Time Limits

Petitioner also claims that the trial court set arbitrary time limits for counsel to conduct voir dire which violated his right to a fair trial under Rosales-Lopez v. United States, 451 U.S. 182 (1981). As a matter of fact, the time limits were not arbitrary. They were decided and announced ahead of time after hearing arguments from counsel and these limits were applied evenly to both Petitioner's defense and the government. Moreover, the jury selection process was careful and methodical and lasted some eight days.

Petitioner cites the case of one juror to demonstrate that the trial court failed to adequately voir dire. Petitioner asserts that prospective juror Cigainero indicated on his pre-trial juror questionnaire that he would automatically refuse to vote for life imprisonment. During voir dire, the trial judge asked him to clarify his view. Cigainero first said that he had not understood the written question. Cigainero then explained that he would automatically refuse to vote for the death penalty. He then agreed that he would consider mitigating and aggravating circumstances first. The judge and counsel left Cigainero on the panel. The California Supreme Court denied this claim on direct appeal. Carter, 36 Cal. 4th at 1248-52.

In Rosales-Lopez, the United States Supreme Court says nothing about the amount of time that must be spent on voir dire, only that in a federal trial voir dire must be "adequate," and that "the adequacy of voir dire is not easily subject to review." 451 U.S. at 188. Beyond that, Rosales-Lopez addresses only a non-constitutional standard for the federal courts. Id. at 190. On this record, the California Supreme Court's decision was neither contrary to nor an unreasonable application of clearly established Federal law.

c. Voir Dire Courtroom Conditions

Petitioner also claims that conditions in the courtroom during jury selection were so crowded and uncomfortable that it was impossible to fairly and effectively conduct voir dire. While the courtroom was crowded and warm at the outset of voir dire, the uncomfortable conditions in the courtroom were not unrelenting, but improved as the jury pool was reduced through challenges for cause. For this claim, Petitioner cites no decisions of the Supreme Court (and no case has been found) addressing a constitutionally required comfort level during jury selection. The California Supreme Court denied this claim on appeal observing that a defendant, "is entitled to an impartial jury, not a contented one." Carter, 36 Cal. 4th at 1252-53. With no federal law clearly established, the California Supreme Court's decision cannot be said to be contrary to or an unreasonable application of clearly established Federal law.

d. Trial Judge Conduct of Voir Dire

Petitioner next claims that the trial judge improperly stated the law during voir dire, failed to uncover and excuse unsuitable jurors, and improperly excused jurors for cause, rendering his conviction unconstitutional under Witherspoon, 391 U.S. 510, Wainwright v. Witt, 469 U.S. 412 (1985), and Morgan v. Illinois, 504 U.S. 719 (1992). The California Supreme Court denied this claim on direct appeal. Carter, 36 Cal. 4th at 1253-54. The California Supreme Court again denied the claim on the merits in Petitioner's second state habeas petition presented as claim 1(A) and (B). (Supp. Lodgment No. 4.)

As to the claim about improper excusals for cause, Petitioner has not identified a juror that was erroneously removed for cause. Without identifying a juror, Petitioner is simply speculating and has not carried his habeas burden. The California Supreme Court made the same observation in denying Petitioner's direct appeal. Carter, 36 Cal. 4th at 1254. In denying the claim, the California Supreme Court's decision was neither contrary to nor an unreasonable application of clearly established Federal law.

As to the claim the trial judge improperly stated the law during jury selection, the California Supreme Court found that some statements "lacked precision," were "overly simplistic," and "contained technical misstatements," but were not formal instructions. Instead, the court found that the statements were made to familiarize the prospective jurors with the tasks ahead and in order to assist the parties. Neither Witherspoon, nor Wainwright, nor Morgan require the strict precision Petitioner now claims was lacking. Witherspoon only requires a court to not produce a jury "uncommonly willing to condemn a man to die." 391 U.S. at 521. Petitioner also citesWainwright,but Wainwright does not require technically precise voir dire questions. 469 U.S. at 433-434 ("Relevant voir dire questions addressed to this issue need not be framed exclusively in the language of the controlling appellate opinion; the opinion is, after all, an opinion and not an intricate devise in a will."). Likewise,Morgan does not impose strict accuracy requirements on trial courts during voir dire questioning.Morgan holds that a defendant is entitled, upon his request, to ask questions of prospective "jurors who, [] prior to the State's case in chief, ha[ve] predetermined the terminating issue of his trial, that being whether to impose the death penalty." 504 U.S. at 736. But Petitioner does not assert that this happened during his trial. He does not point to a time where he was denied a follow-up question of a juror who expressed a predetermination to impose the death penalty. He only alleges undefined prejudice and a "curtailment" of his right to challenge jurors for cause. Without the guidance of clearly established federal law, the California Supreme Court's decision was neither contrary to nor an unreasonable application of clearly established Federal law.

2. Effective Assistance of Counsel During Voir Dire

Petitioner next claims that he was denied the effective assistance of counsel during the jury selection process. Part of this claim was raised for the first time in Carter's second state habeas petition as claim I(C), and part of this claim (relating to juror Cigainero) was raised for the first time in his reply brief in support of claim 1(C). This ground for federal habeas relief amounts to Petitioner second-guessing his trial counsel's strategic decisions during jury selection. The claim was denied on the merits without a reasoned opinion by the California Supreme Court. (Supp. Lodgment No. 4.)

In order to prevail on an ineffective assistance of counsel claim, a habeas petitioner must show both that counsel's performance was deficient and that counsel's errors were so serious as to deprive the defendant/petitioner of a fair trial.See Strickland, 466 U.S. at 687. An ineffective assistance of counsel claim in a federal habeas review of a state conviction imposes a greater degree of difficulty. "Surmounting Strickland's high bar is never an easy task." Padilla v. Kentucky, 559 U.S. ___, 130 S.Ct. 1473, 1485 (2010). "Establishing that a state court's application of Strickland was unreasonable under § 2254(d) is all the more difficult. The standards created by Strickland and § 2254(d) are both 'highly deferential,' and when the two apply in tandem, review is 'doubly' so." Richter, 131 S. Ct. at 788, citing Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (internal quotation marks and citations omitted).

"A federal habeas court must therefore determine that the likelihood of a different result is substantial, not just conceivable." Richter, 131 S.Ct. at 792.

According the requisite double deference standard for ineffective assistance claims, Petitioner's claim lacks merit under both the performance prong and the prejudice prong. On the performance prong, picking a jury is an inherently subjective, imperfect process. By necessity, counsel make decisions on instinct and feel rather than by absolute certainty. Assessing jurors during voir dire requires an evaluation of demeanor and credibility. Having reviewed the trial transcript in this case, it is fairly arguable that counsel made reasonable tactical decisions during voir dire. In fact, there is a legal presumption that the challenged actions are sound strategy. Id. at 689. Under Strickland, a federal habeas court's review of such tactical decisions "must be highly deferential" and accorded "a strong presumption of validity, regardless of whether we agree with it."United States v. Quintero-Barraza, 78 F.3d 1344, 1349 (9th Cir. 1995). Courts applying Strickland recognize there are distorting effects of hindsight when looking back to review a prospective juror's statements and trial counsel's decisions about whether or not to leave a person on a jury. On the thin showing in this petition, and given the high level of deference accorded to counsel's strategic decisions in assessing prospective jurors in jury selection, Petitioner has not demonstrated that his trial counsel performed in a constitutionally deficient manner.

On the prejudice prong, Petitioner has to make the required showing of prejudice under Strickland, by showing that a "juror who harbored an actual bias was seated on the jury as a result of counsel's failure to voir dire on the insanity defense." Ybarra v. McDaniel, 656 F.3d 984, 1001 (9th Cir. 2011). Petitioner points to one juror as evidence of his counsel's ineffectiveness: juror Cigainero. Cigainero was interviewed in 2009 and his name first mentioned in the reply brief in support of claim 1(C) of Petitioner's second state habeas petition.

Petitioner argues that Cigainero twice admitted that he was biased in favor of the death penalty. Because of that he argues that counsel should have struck Cigainero from the panel. Petitioner argues that Cigainero first admitted his bias in his juror questionnaire. Petitioner then argues that Cigainero again admitted his pro-death penalty bias in open court during voir dire. The evidence, however, is not nearly so clear as Petitioner claims. The questionnaire itself posed a long, grammatically complex question which called for a yes-or-no answer. During voir dire, the trial judge asked about the questionnaire answer, and Cigainero agreed that he did not understand the written question. (RT 1464-65.) More importantly, during voir dire the trial judge posed the question to Cigainero, again. And again, Cigainero said he did not understand the complicated question. This was the exchange Petitioner's counsel was evaluating,

The Court: Okay. On the questionnaire, one of the questions we asked, and I'm going to read the whole thing to you, "Assume for the sake of this question only that the jury has found the defendant guilty of first degree murder and has found one or more special circumstances true and that you are in the penalty phase. Would you, because of any views you may have concerning capital punishment, automatically refuse to vote in favor of the penalty of life imprisonment without the possibility of parole, and automatically vote for a penalty of death without considering the evidence, or any of the aggravating and mitigating factors to which you will be instructed regarding the facts of the crime and the background and character of the defendant?"

How would you answer that now, or do you understand?

Prospective Juror: I don't understand the whole question. (RT 1464.) The trial judge then asked a question in a shorter, simpler form. Cigainero's answer was that he would automatically refuse to vote for the death penalty.

The Court: Okay. Do you think you would have a tendency to automatically refuse to vote for the death penalty where there was special circumstance[s] found -- first degree murder found?

Prospective Juror: Yes.

(Id.) In other words, based upon the voir dire, it would have appeared to counsel that juror Cigainero was actually biased against the death penalty and that it would have been ineffective assistance for his counsel to strike Cigainero from the jury. Further court questioning indicated that Cigainero was open minded about punishment and ready to consider aggravating and mitigating factors before deciding any punishment. (RT 1463-1464.)

In judging ineffective assistance of counsel claims, "hindsight cannot suffice for relief when counsel's choices were reasonable and legitimate based on predictions of how the trial would proceed."Premo v. Moore, 131 S. Ct. 733, 745 (2011). "A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Burger v. Kemp, 483 U.S. 776, 789 (1987), quoting Strickland, 466 U.S. at 689. Applying these standards, Petitioner's first two examples of Cigainero's alleged death penalty bias do not suggest such bias at all. The trial record demonstrates the opposite. From counsel's point of view during jury selection, and without the benefit of hindsight, Cigainero appeared to be biased against the death penalty and ensuring he stayed on the jury was a reasonable decision (and the preferable decision) for his attorney to make. Counsel's decision is entitled to double deference by this Court. In denying Petitioner's claim, the state court likely reached the correct result under Strickland. It is at the very least a reasonable decision. Under § 2254(d), that the California Supreme Court "reached a reasonable [decision] is sufficient." Premo, 131 S. Ct. at 743.

In one of his more interesting arguments, Petitioner relies on hindsight to argue that he was constitutionally prejudiced by his counsel's performance. He points back to the interview of Cigainero conducted some 18 years after the trial.

There are problems with this approach. First, the trial record demonstrates that his counsel performed competently. Thus, Petitioner's claim fails the performance prong of the Strickland test. Without a failure of counsel's performance, prejudice is irrelevant. Second, post-verdict evidence about a juror's mental processes is inadmissible under both the Federal Rules of Evidence and decisions of the Supreme Court. Third, habeas courts are to correct for the distorting effects of hindsight. Fourth, even in hindsight, the evidence is ambiguous.

Petitioner's counsel interviewed Cigainero in 2009 about his own deliberative process while on the jury. Petitioner claims that the interview answers demonstrate that Cigainero automatically decided on the death penalty for Petitioner before hearing aggravating or mitigating evidence during the penalty phase. According to Petitioner, this interview evidence shows that Cigainero was biased in favor of the death penalty during the trial and that his trial attorney should have elected to strike Cigainero from his jury. Thus, the prejudice from his counsel's allegedly deficient performance.

Unfortunately for Petitioner, the post-verdict interview answers may not be considered. Federal Rule of Evidence 606 bars a federal court from considering a juror's testimony about his deliberations. Rule 606(b) states: "During an inquiry into the validity of a verdict . . . a juror may not testify about any statement made or incident that occurred during the jury's deliberations; the effect of anything on that juror's or another juror's vote; or any juror's mental processes concerning the verdict or indictment." The Ninth Circuit follows this rule. Jurors "may not be questioned about the deliberative process or subjective effects of extraneous information, nor can such information be considered by the trial or appellate courts." United States v. Bagnariol, 665 F.2d 877, 884-85 (9th Cir. 1981). More recently, the Ninth Circuit explained that juror deliberations are to be, and remain, secret. "Indeed, no one, including the judge, is even supposed to be aware of the views of individual jurors during deliberations, because a jury's independence is best guaranteed by secret deliberations, such that jurors may return a verdict freely according to their conscience and their conduct in the jury room may be untrammeled by the fear of embarrassing publicity."Williams v. Cavazos, 646 F.3d 626, 643-644 (9th Cir. 2011), quoting Clark v. United States, 289 U.S. 1, 16 (1933) (internal quotations omitted); see alsoRushen v. Spain, 464 U.S. 114, 121 n.5 (1983) ("But a juror generally cannot testify about the mental process by which the verdict was arrived."); McDonald v. Pless, 238 U.S. 264, 267-68 (1915) ("But let it once be established that verdicts solemnly made and publicly returned into court can be attacked and set aside on the testimony of those who took part in their publication and all verdicts could be, and many would be, followed by an inquiry in the hope of discovering something which might invalidate the finding."); Mattox v. United States, 146 U.S. 140, 149 (1892) ("Public policy forbids that a matter resting in the personal consciousness of one juror should be received to overthrow the verdict, because being personal it is not accessible to other testimony; it gives to the secret thought of one the power to disturb the expressed conclusions of twelve; its tendency is to produce bad faith on the part of a minority, to induce an apparent acquiescence with the purpose of subsequent dissent; to induce tampering with individual jurors subsequent to the verdict.").

Williams continues, "[a]s Justice Cardozo wrote, 'Freedom of debate might be stifled and independence of thought checked if jurors were made to feel that their arguments and ballots were to be freely published to the world.'" Id.at 644;see also Fields v. Brown, 503 F.3d 755, 778 (9th Cir. 2007) (en banc), cert. denied sub nom., Fields v. Ayers, 552 U.S. 1314 (2008) (post-verdict juror testimony about a juror's, or the jury's, deliberative process may not be considered by a reviewing habeas court). Consequently, it would have been a reasonable application of federal law for the California Supreme Court to disregard the post-verdict juror interview. Likewise, the evidence may not be considered here and the federal claim fails as a result.

Even if the interview evidence were to be considered, however, the interview evidence is ambiguous. Asked years later about his decision in favor of imposing the death penalty and when he made it, Juror Cigainero said, [It was] at the point when I was convinced that [Carter] was responsible for the murders because I believed in the death penalty. And once I saw in my mind I felt he committed these murders and the way he did it and everything else that went along with it, I just felt he was a candidate for it. Nobody had to convince me that I had to change my vote over to a death penalty. I was always in favor of that.

(Lodgment No. 5, Ex. 4 at 71.) Petitioner reads this answer as demonstrating that Cigainero automatically voted for the death penalty. Part of his answer can be read that way. However, other parts of his answer suggest he engaged in a proper deliberative process. For example, he said he felt that Petitioner was a candidate for the death penalty. Cigainero's use of the word "candidate" implies one among two or more still in the running for a final determination. In other words, a mind not yet made up. He also said that once he felt Petitioner committed the murders "and the way he did it and everything else that went along with it," then he felt Petitioner was a candidate for the death penalty. This part of the statement, "and everything else that went with it," implies that Cigainero considered aggravation and mitigation matters beyond the guilt phase and from the penalty phase before deciding upon Petitioner's penalty. That would be consistent with his memory (from the same interview) of how the others jurors deliberated:

Question: Did any of the jurors appear to you to reach a verdict before the deliberations either on the built or the penalty?

Cigainero: Not that they ever voiced.

(Id. at 73.) Juror Ridge was also interviewed and had the same answer.

Question: Do you think that any of the jurors -- just from your own recollection or thought process, do you remember any of the jurors reaching a verdict on guilt or penalty before the deliberations process begun [sic]?

Ridge: No.

(Id. at 45.) The ambiguity of Cigainero's answer, combined with the long passage of time between trial and post-verdict interview, do little to shed light on whether this juror was unconstitutionally biased in favor of the death penalty. When the distorting effects of hindsight are eliminated, the Cigainero interview answer does not demonstrate Strickland-type prejudice from counsel's jury selection performance. It is certainly insufficient to overcome the double deference owed to the California Supreme Court's decision denying Petitioner's claim of ineffective assistance of counsel during jury selection. Ybarra, 656 F.3d at 1001.

3. Misconduct by Jurors (McAlpine, Cigainero, and Ridge)

Petitioner also claims that he was deprived of a fair and unbiased verdict due to four alleged instances of juror misconduct. First, Petitioner points to a luncheon that the jurors had with Mr. McAlpine. McAlpine had been on the jury during the guilt phase, but had difficulty staying awake. He was removed before the jury was instructed on the guilt phase. McAlpine later met with the jury at the jurors' invitation, prior to the penalty deliberations. Second, Petitioner again points to Mr. Cigainero's post-verdict interview as evidence that he prematurely decided the penalty question and categorizes it as juror misconduct. Third, Petitioner claims that the jury already knew he was under a death sentence from the Los Angeles case. Fourth, Petitioner argues that the jury engaged in misconduct by viewing what he characterizes as "extrinsic evidence," when during deliberations a juror, Mr. Ridge, found a rope or stocking within Petitioner's jacket -- a jacket that had been admitted into evidence.

a. Former Juror McAlpine's Luncheon

Former juror McAlpine met with the other jury members at a luncheon after the guilt phase, but prior to the penalty deliberations. Petitioner claims this was jury misconduct because the trial was probably discussed. The claim was presented in Petitioner's second state habeas petition as claim 1(D) and denied without a reasoned opinion by the California Supreme Court. (Supp Lodgment No. 4.)

This claim has little evidentiary support and is based primarily on speculation and conjecture. Certainly, the luncheon did actually take place. The trial transcript reflects that the lunch plans were brought to the attention of the trial judge and defense counsel. The defense consented to the luncheon. (RT 8035.) The trial judge specifically, and soundly admonished McAlpine and the other jurors to refrain from discussing the case. (RT 8035-36.) Yet, Petitioner has produced no evidence that the any aspect of the case was actually discussed or that any such discussion, if it had occurred, had any effect on the outcome of the case. Jurors are presumed to follow a judge's instructions.

Petitioner speculates that McAlpine likely failed to follow the judge's instructions, because, during the trial, McAlpine failed to follow the judge's instructions to stay awake. With nothing more than speculation as a basis for the claimed misconduct, the California Supreme Court's denial of this claim cannot be said to be an erroneous or unreasonable application of federal law.

b. Juror Cigainero's Decision-Making

For this claim, Petitioner again points to Cigainero's post-verdict interview and alleges that he failed to follow the jury instructions because he prematurely made up his mind about the penalty phase. Petitioner claims that amounts to juror misconduct. The claim was presented in the reply brief in support of Petitioner's second state habeas petition as claim 1(D) and denied without a reasoned opinion by the California Supreme Court. (Supp. Lodgment No. 4.)

As discussed earlier, post-verdict evidence of a juror's mental processes during deliberations is not evidence that is entertained in a habeas review. Moreover, the passage of 18 years undermines the supposed accuracy of the juror's memory and the answer given is, itself, ambiguous. The California Supreme Court's denial of this claim cannot be said to be an erroneous or unreasonable application of federal law.

c. Awareness of Prior Death Sentence

For this claim, Petitioner argues that the deliberating jury was aware of his death sentence in the Los Angeles case. That alleged awareness necessarily reduced the jury's sense of responsibility and amounts to misconduct. The claim was presented in Petitioner's second state habeas petition as claim 17 and denied on the merits without a reasoned opinion by the California Supreme Court. (Supp. Lodgment No. 4.) Relying again on the problematic post-verdict juror interviews, Petitioner claims, as a fact, that the jury knew that he had already been sentenced to death in the Los Angeles case and that they knew that this case would be appealed. Petitioner claims that this "extrinsic evidence" poisoned the jury and led them to shirk their responsibility.

There are three problems with this claim. The first two problems are with the juror interview evidence. As noted earlier, these interviews were conducted some 18 years after the trial concluded. In that time, memories grew dim and sequences of events may be confused. The larger problem is that the juror interviewed, Mr. Ridge, did not remember actually being informed of the other death sentence during deliberations. Consistent with that, Ridge said that "it wasn't known during the deliberations." (Lodgment No. 5, Ex. 4 at 50.) At most, he said that "we kind of thought that we knew," but that it was not until after the trial that he saw news articles that confirmed his musings. Ridge explained, "I know at some point afterwards that there were articles in the newspaper about [the L.A. sentence], and I think that confirmed everything that we kind of thought we knew, but we didn't discuss it." (Id.) In other words, Ridge's memory is that he guessed that there was another death sentence, but that the jury did not discuss it, and that he did not know with certainty until after he and the other jurors rendered their verdict.

While Petitioner argues that this is enough to be considered prejudicial jury misconduct, the Supreme Court has not gone nearly that far. On the contrary, in Romano v. Oklahoma, 512 U.S. 1 (1994), the Court affirmed a conviction in a more drastic case. The state had introduced into evidence, and before the jury, a copy of the judgment of death for the defendant from another case. The Romano court reasoned, "it is impossible to know how this evidence might have affected the jury. It seems equally plausible that the evidence could have made the jurors more inclined to impose a death sentence, or it could have made them less inclined to do so. Either conclusion necessarily rests upon one's ...


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