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Rowland v. Chappell

United States Court of Appeals, Ninth Circuit

December 6, 2017

Guy Kevin Rowland, Petitioner-Appellant,
v.
Kevin Chappell, Warden, Respondent-Appellee.

          Argued and Submitted October 4, 2017 Seattle, Washington

         Appeal from the United States District Court for the Northern District of California William Alsup, District Judge, Presiding D.C. No. 3:94-cv-03037-WHA

          Joel Levine (argued), Costa Mesa, California; Michael Robert Levine (argued), Levine & McHenry LLC, Portland, Oregon; for Petitioner-Appellant.

          Alice B. Lustre (argued), Deputy Attorney General; Glenn R. Pruden, Supervising Deputy Attorney General; Gerald A. Engler, Senior Assistant Attorney General; Xavier Becerra, Attorney General; Office of the Attorney General, San Francisco, California; for Respondent-Appellee.

          Before: Kim McLane Wardlaw, Richard R. Clifton, and John B. Owens, Circuit Judges.

         SUMMARY[*]

         Habeas Corpus/Death Penalty

         The panel affirmed the district court's denial of California state prisoner Guy Kevin Rowland's 28 U.S.C. § 2254 habeas corpus petition challenging his conviction for first degree murder and rape and his capital sentence.

         The panel rejected Rowland's contention that AEDPA, and its highly deferential standard, does not apply to his case because he filed a request for appointment of counsel and a stay of execution before AEDPA's effective date.

         The panel held that Rowland's trial attorneys were deficient by retaining a psychiatrist for the penalty phase only a few days before its start and by failing to prepare him adequately, and it would be unreasonable for the California Supreme Court to conclude otherwise. Under AEDPA's highly deferential standard of review, the panel held that the California Supreme Court could have reasonably concluded that Rowland was not prejudiced.

         The panel held that the California Supreme Court reasonably decided that Rowland's counsel's failure to call as a witness at the penalty phase the woman to whom Rowland confessed did not amount to deficient performance, and that even if counsel's performance was deficient, the California Supreme Court reasonably decided that Rowland had not shown prejudice.

         The panel wrote that two statements by the prosecutor at the penalty-phase closing argument were inappropriate, but that, applying AEDPA's extreme deference, the California Supreme Court reasonably determined that neither statement violated Rowland's constitutional rights.

         The panel held that the California Supreme Court's rejection of Rowland's non-concurrent representation conflict claim was neither contrary to, nor an unreasonable application of, established federal law. The panel wrote that even if successive representation could constitute an actual conflict under established federal law, Rowland has not demonstrated that any conflict due to his counsel's personal and professional relationship with a chief investigating officer significantly affected counsel's performance.

         The panel declined to expand the certificate of appealability to include an unexhausted claim that systemic delay in the administration of California's death penalty renders executions arbitrary in violation of the Eighth Amendment.

          OPINION

          OWENS, CIRCUIT JUDGE

         California state prisoner Guy Kevin Rowland appeals from the district court's denial of his 28 U.S.C. § 2254 habeas corpus petition challenging his conviction for first degree murder and rape and his capital sentence. We affirm.

         I. BACKGROUND

         A. Factual and Procedural History

         On February 11, 1987, the State of California filed an amended information charging Rowland with one count of first degree murder (with the special circumstance that the murder took place during the commission of rape) and one count of rape. It alleged that Rowland had twelve prior felony convictions, and that he was on parole when he committed the offense.

         On May 13, 1988, after the guilt phase of the trial, the jury convicted Rowland of both first degree murder and rape, and also found true the special circumstance allegation. On June 6, 1988, after the penalty phase, the jury returned a death sentence.

         1. Guilt Phase Evidence

         Evidence at trial established that on March 16, 1986, Marion Geraldine ("Geri") Richardson went to the "Wild Idle" bar in Byron, Contra Costa County, California. Richardson lived in Byron with her mother and worked as a cook. She regularly snorted methamphetamine and evidently had some with her that night.

         Rowland, who was twenty-four years old at the time, was also at the bar. Rowland socialized with Richardson for a while. According to an off-duty bartender, Rowland was "coming on" to Richardson, but she did not respond positively and seemed to be "trying to ignore" him.

         Before 10 p.m., Rowland left the bar alone, driving away in his truck. Sometime later, Richardson told her friend that she was not feeling well, had a terrible headache, and needed to go home to get some sleep as she had to go to work early the next morning. Richardson left the bar alone in her car. Her car was later seen parked, empty and unlocked, at an odd angle about half a block from the bar.

         In the hours that followed, Rowland brutally beat Richardson about the head, face, and elsewhere. He also raped her. According to expert testimony, Richardson had a bruise on her inner thigh which could have been caused by someone using a knee to force her legs part. Rowland also choked Richardson twice, killing her the second time. Before her death, Richardson ingested a potentially lethal dose of methamphetamine, which it appeared Rowland put in her mouth. Rowland then hauled Richardson's body in his truck to Half Moon Bay in San Mateo County, dragged her on the ground, and dumped her in the ocean.

         The next morning, at about 7 a.m., Rowland went to the house of his lover, Susan Lanet, in Livermore. He looked disturbed and said he wanted to leave California. They shared some methamphetamine he had evidently taken from Richardson. Rowland soon admitted to Lanet that he had killed Richardson. He asked Lanet whether she wanted Richardson's belongings, including a ring and make-up. Lanet declined. Rowland then offered Lanet $20 to clean his truck and remove "[b]lood and every strand of hair." Lanet pretended to accept, but instead called the police. Shortly thereafter, Rowland was arrested as he attempted to flee. At around 9:45 a.m., Richardson's body was found at the base of a cliff by Moss Beach near Half Moon Bay. Blood and other evidence in Rowland's truck tied him to Richardson's killing.

         At the guilt phase of the trial, Rowland did not present any evidence, call any witnesses, or take the stand. His primary defense was that the evidence did not establish first degree murder or rape. The jury returned a guilty verdict.

         2. Penalty Phase Evidence

         During the penalty phase of the trial, the State offered in aggravation: (1) the circumstances of Rowland's crimes committed against Richardson (for which it relied on the evidence already provided during the guilt phase); (2) Rowland's extensive prior violent criminal activity; and (3)Rowland's prior felony convictions. As the State demonstrated to the jury, Rowland had an egregious history of violence towards women:

• On April 4, 1978, Rowland entered the home of a sixty-three-year-old woman, whom he battered while he attempted to escape. She suffered a crushed vertebra and was hospitalized for eleven days.
• On October 4, 1980, Rowland lured a twenty-six-year-old woman out of a bar to a park with an offer to share cocaine, and then assaulted, battered, and raped her.
• On November 7, 1980, Rowland, together with a male partner, kidnapped two thirteen-year-old girls, whom they lured into a truck with a false offer of a ride. One girl escaped, but the two men raped the other girl multiple times. Rowland helped his partner rape the girl twice. Rowland himself raped her six times, caused her to orally copulate him, sodomized her twice, and fondled her. During the attack, he repeatedly threatened to kill the girl if she resisted.
• On March 11, 1986 (a few days before Richardson's murder), Rowland assaulted his stepsister with a knife and threatened to kill her. Their dispute involved the locking of a door, but the underlying cause was apparently her antagonistic response to his expressed romantic interest.
• Also on March 11, 1986, Rowland assaulted, threatened to kill, and may have raped a woman. After Rowland, Lanet, and the woman used methamphetamine together, Rowland offered to drive the woman home. Instead, he drove her to the top of a cliff that loomed over a body of water. At the cliff, he pulled her out of the car, beat her, and said he was going to kill her and throw her body off the cliff. He told her to undress and she complied. He continued to beat and choke her, and may have raped her. He then drove her to his mother's house, where he kept her in the bathroom against her will. Rowland called Lanet and admitted what he had done. Rowland asked the woman to hold off calling the police, and then he fled.

         As to Rowland's prior felony convictions, the State established that Rowland was convicted of multiple counts of kidnapping, rape, sodomy, and other felonies for the vicious attack on the thirteen-year-old girls.

         In mitigation, Rowland himself did not testify, but he presented evidence of his family background, including physical abuse and alcoholism. He was born into a middle class family in 1961, and had one brother and two sisters. His parents had a violent, alcoholic marriage. His mother neglected and abused him, and twice attempted to drown him in the bathtub as a baby. As a toddler, he experienced night terrors and convulsions. At a young age, he commenced psychotherapy and drug therapy. In school, he had learning disabilities and behavioral problems. He started to abuse alcohol and drugs, and proceeded to spend substantial time in correctional facilities.

         Rowland was diagnosed with different mental conditions at various points in his life. For example, when he was six or seven years old, he was diagnosed with hyperactivity. At the time of trial, when he was twenty-six, Rowland was diagnosed with borderline personality disorder. As discussed further below, psychiatrist Dr. Hugh Ridlehuber testified for Rowland at the penalty phase.

         Rowland also offered the background of his family members as mitigation evidence. His parents each came from violent, sexually abusive, alcoholic backgrounds. Rowland's parents physically and/or sexually abused his sister, and Rowland's father abused his mother.

         The jury returned a death sentence.

         B. Post-Conviction Proceedings

         On December 17, 1992, the California Supreme Court affirmed Rowland's conviction and death sentence. See People v. Rowland, 841 P.2d 897 (Cal. 1992).

         On March 7, 1994, Rowland filed his first habeas petition in the California Supreme Court. His state habeas petition was accompanied by supporting declarations, including from Dr. Ridlehuber, who had testified for Rowland in the penalty phase and now declared that he had been hired by trial counsel "too late" to do an adequate examination. The California Supreme Court summarily denied the petition on the merits on June 1, 1994.

         On August 26, 1994, Rowland filed a motion in federal district court requesting appointment of counsel and a stay of execution pending preparation of his finalized habeas petition. On June 19, 1995, after counsel was appointed, Rowland filed a motion for a further stay of execution, which was accompanied by a partial list of non-frivolous issues to be raised in the finalized petition. On June 28, 1996, after the effective date ...


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