and Submitted October 4, 2017 Seattle, Washington
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
Levine (argued), Costa Mesa, California; Michael Robert
Levine (argued), Levine & McHenry LLC, Portland, Oregon;
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;
Before: Kim McLane Wardlaw, Richard R. Clifton, and John B.
Owens, Circuit Judges.
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.
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.
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.
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.
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.
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.
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.
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.
Factual and Procedural History
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.
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
Guilt Phase 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.
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.
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.
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
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.
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.
Penalty Phase Evidence
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
• 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
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.
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
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
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.
jury returned a death sentence.
December 17, 1992, the California Supreme Court affirmed
Rowland's conviction and death sentence. See People
v. Rowland, 841 P.2d 897 (Cal. 1992).
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.
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 ...